Petition — United States District Court for the District of New Jersey v. Arthur Lawrence Abrams

Supreme Court brief1975

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IN THE

Supreme Court of the United States

Ocroser TeRM, 1975

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW JERSEY,

Petitioner,

Vv.

ARTHUR LAWRENCE ABRAMS,

Respondent.

—

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

——

—_—_- -—

ee —

JonaTHan L. GOLDSTEIN,

United States Attorney for the

District of New Jersey,

Joun J. Barry,

Maryanne T. DesMOND,

Assistant United States Attorneys,

Federal Building,

970 Broad Street,

Newark, New Jersey 07101

Attorneys for Petitioner.

Adams Press Corp., 11 Commerce Street, Newark, N. J. 07102—(201) 623-8611

TABLE OF CONTENTS

PAGE

ES lll a aa 2

ET i ET ee eee, 2

QUESTION PRESENTED ..0.0...........-ccccocccccccccecees 2

ConstituTionaL Provision, Stature anp Rutes Iy-

TE eeessseeesanmneainnieteinnetetccentetenitenniteintaesiementete

en AT ROL RET

REASONS FOR GRANTING THE WRIT 0on.e-ccceccececoccccocsecceeseeee 20

ConcLUsION 28

APPENDIX:

A—Opinion of the United States Court of Ap-

peals ° la

B—Judgment of the United States Court of

Appeals 36a

C—Amended Judgment of the United States

Court of Appeals 37a

D—Opinion and Order of the United States

District Court —_

E—Opinion of the Supreme Court of New Jer-

sey a 53a

Cases Cited

Burr, Ex parte, 22 U.S. (9 Wheat.) 529 ooo 21

Colsey, In re, 63 N.J. 210, 306 A.2d 75 ............ 18

Disbarment of Buttles, In re, 419 U.S. 1101 ................ 24, 25

ii TABLE OF CONTENTS

PAGE

Disbarment of Mades, In re, 414 U.S. 1154 2000000... 25

Disbarment of Osborne, In re, 420 U.S. 918 .0000000..... 24

Disbarment of Pavsner, In re, 409 U.S. 1102 2000000020... 25

Garland, Ex parte, 71 U.S. (4 Wall.) 333 2000000... 21

I, TD OU ee Ge TID eecrnentiatttnsnnictvtaseanictinninens 22, 24

I, TR GR, GI Is ceeceenecneretnsiteneeeeresniecmmacentoion 22, 24

Richard G. Kleindienst, In the Matter of, No. 5-37-75,

REN TT, ORRIN. LEAST TNO REE 21

Robinson, Ex parte, 86 U.S. (19 Wall.) 505.0000. 21

Ruffalo, In re, 300 US. GAG .on.n..n...ccccnicccscceccecceecseeees 21-23, 27

Sacher v. Association of the Bar, 347 U.S. 288 .0000....... 24

Sacher v. United States, 343 U.S. 1 oe. 24

Secombe, Ex parte, 60 U.S. (19 How.) 9 21

Selling v. Radford, 243 U.S. 46 oo. ececeeeeee 19, 22, 23

Theard v. United States, 354 U.S. 278 0. 19, 21-23

Pe ee A, Te Ts I eeecteetetecitenecttereceree 21

United States Constitution Cited

Sire EE: SINS: Tb ‘sniessatiiesddbdiabdtesabadhdineellaebdiacheiiehindiiltaaciaicidicatiai 2,3

28 U.S.C.:

I ic

I a 2,3

TABLE OF CONTENTS iii

Rules Cited weed

8 Ie etre ee 2,3

United States District Court, General Rules:

R. 7 asian , 2,4,7

New Jersey Rules:

R. 1:20-1 to R. 1:20-5 7

Other Authorities Cited

Agata, Admissions and Discipline of Attorneys in

Federal District Court: A Study and Proposed

Rules, 3 Hofstra L. Rev. 249 et seq. (Spring 1975) 22

Cheatham, The Reach of Federal Action Over The

Profession of Law, 18 Stan. L. Rev. 1288 (1966) .... 25

No.

IN THE

Supreme Court of the United States

Ocroser Term, 1975

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW JERSEY,

Petitioner,

ARTHUR LAWRENCE ABRAMS,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

The United States Attorney for the District of New

Jersey, on behalf of the United States District Court for

the District of New Jersey, petitions for a writ of cer-

tiorari to review the judgment of the United States Court

of Appeals for the Third Circuit in this case.

Opinions Below

The en banc opinion of the Court of Appeals (App. A,

infra, pp. 1-35a) is not as yet officially reported. —

en bane opinion and order of the district court gg ,

infra, pp. 39-52a) is reported at 385 F. Supp. 1210. _ The

opinion of the New Jersey Supreme Court (App. E, on"

pp. 53-6la) is reported at 65 N.J. 372 and at 320 A.2d 471.

Jurisdiction

The judgment of the Court of Appeals was entered on

June 30, 1975 and was thereafter modified on July 14,

1975 (App. B & C, infra, pp. 36-38a). The jurisdiction of

this Court is invoked under 28 U.S.C. §1254(1).

The jurisdiction of the district court existed pursuant

to Rule 7 of the General Rules of that court, which rule

was duly enacted pursuant to Article IIT, Section 1 of

the Constitution of the United States, 28 U.S.C. §2071 and

Rule 83 F.R.C.P.

Question Presented

Where an attorney has been disciplined by a state court

for professional misconduct on the basis of an evidentiary

record not developed in that court and a United States

District Court thereafter seeks to discipline that attorney

on the basis of the identical record:

(a) to what extent, if any, is the district court bound

by the state court’s determination of the appropriate

quantum of discipline to be imposed; and

(b) to what extent, if any, is the district court bound

by the state court’s analysis of the legal or factual issues

involved?

ol ee hee

Constitutional Provision, Statute and Rules Involved

Article III, Section 1 of the Constitution of the United

States, provides as follows:

Articite III

Section 1. The judicial Power of the United States,

shall be vested in one supreme Court, and in such inferior

Courts, as the Congress may from time to time ordain

and establish. The Judges, both of the supreme and in-

ferior Courts, shall hold their Offices during good Be-

haviour, and shall, at stated Times, receive for their Serv-

ices, a Compensation, which shall not be diminished during

their Continuance in Office.

Section 2071 of Title 28, United States Code, provides

as follows:

§ 2071. Rule-making power generally

The Supreme Court and all courts established by

Act of Congress may from time to time prescribe

rules for the conduct of their business. Such rules

shall be consistent with Acts of Congress and rules

of practice and procedure prescribed by the Su-

preme Court. June 25, 1948, ¢. 646, 62 Stat. 961;

May 24, 1949, c. 139, 4 102, 63 Stat. 104.

Rule 83 of the Federal Rules of Civil Procedure pro-

vides as follows:

Rule 83. Rules by District Courts

Each district court by action of a majority of the

judges thereof may from time to time make and

amend rules governing its practice not inconsistent

with these rules. Copies of the rules and amend-

4 5

ments so made by any district court shall upon

their promulgation be furnished to the Supreme

Court of the United States. In all cases not pro-

vided for by rule, the district courts may regulate

their practice in any manner not inconsistent with

these rules. : GENERAL RULEs

(3) Proceedings within subdivisions (a), (b), and

requiring the respondents to show cause within 30

deceit, malpractice, conduct prejudicial to the

administration of justice or violation of the

Code of Professional Responsibility of the

American Bar Association.

Rule 7 of the General Rules of the United States Dis-

trict Court for the District of New Jersey, provides as

follows:

Rute 7 Discrecixne or ATTORNEYS

(1) The chief judge shall have charge of all mat-

ters relating to the discipline of members of the bar.

(2) The court may make an order in a discipli-

nary proceeding disbarring, suspending or censur-

ing, or taking such other action as justice may re-

quire, with respect to a member of the bar of this

court:

(a) Who has resigned from the bar of a court of

any State, Territory, District, Commonwealth

or Possession;

(b) Who has been disbarred, suspended from

practice or censured in any State, Territory,

District, Commonwealth or Possession;

moral turpitude in any State, Territory, Dis-

trict, Commonwealth or Possession; or

(d) Who is guilty of conduct unbecoming a mem-

ber of the Bar of this court. Without limit-

ing the generality of the foregoing, such

misconduct shall be deemed to include fraud,

OA Al Ree ew tee

days after service thereof on him, personally or by

mail, why he should not be disciplined. Upon the

issuance of such order the chief judge may, for

good cause, temporarily suspend the respondent

pending the termination of the proceedings. Upon

the return of said order, if the respondent fails to

appear or, if he appears and does not contest, the

court shall take such action as justice may require.

If the respondent appears and contests, the chief

judge shall prescribe procedures to formulate the

issues and to provide for a hearing in a manner

similar to that set forth in Paragraph 4 hereof.

(4) Proceedings within subdivision (d) of Para-

graph 2 shall be presented to the chief judge, and,

if he deems the charges of professional miscon-

duct of sufficient weight, he shall refer them for

preliminary investigation and recommendation to

a committee of members of the bar of the court

designated by him or to the United States Attorney.

The recommendation shall be presented to the chief

judge.

Thereupon, with the approval of the chief judge,

the committee designated or the United States At-

torney shall proceed against the defendant by a

petition setting forth the charges against him and an

order requiring him to file an answer and show

cause within 30 days after service on him, person-

ally or by mail, of the petition and order why he

should not be disciplined. Upon respondent’s an-

swer to the petition, the chief judge may set the

matter for prompt hearing before himself, or a

court of one or more judges, or may appoint a mas-

ter to hear and report his findings and recommen-

dations. After such a hearing or report, or if no

answer is made by the respondent, the court shall

take such action as justice may require.

(5) The court, with the consent of the respond-

ent, may order a disciplinary hearing to be private

and direct the papers to be sealed and impounded.

(6) Whenever it appears that an attorney at law

admitted to practice in this court is suspended, dis-

barred, or disciplined in this court, the clerk shall

transmit to the Supreme Court of New Jersey and

the United States Court of Appeals for the Third

Circuit a certified copy of the order of suspension,

disbarment or discipline.

(7) A visiting attorney permitted to argue or

try a particular cause in accordance with Rule 4(c)

who is found guilty of professional misconduct may

be precluded from again appearing at the bar of

this court. Upon the entry of an order of preclu-

sion, the clerk shall transmit to the Supreme Court

of New Jersey and the United States Court of Ap-

peals for the Third Circuit a certified copy thereof,

and of the court’s opinion.

ES ee. eee ens

Statement

Respondent, a New Jersey attorney,’ was disbarred un-

til further order of the court by the United States District

Court for the District of New Jersey of December 10,

1974 (App. D, pp. 39-50a). The proceeding was initiated

by an order issued pursuant to Rule 7 of the General

Rules of the court directing respondent to show cause

before a three-judge panel why he should not be disci-

plined.

Prior to the issuance of that order, respondent had been

suspended for one year from the practice of law by the

New Jersey Supreme Court for having knowingly assisted

his client in the making of a $20,000 illegal payment to a

public official of Jersey City (App. E, pp. 53-6la). The

discipline which had been imposed by the New J ersey

Supreme Court was based on that court’s assessment of

a record which had been developed by the Essex County

Ethics Committee.*

* Respondent is also a member of the bar of this court.

* The State of New Jersey conducts attorney disciplinary pro-

ceedings through county ethics committees. The ethics commit-

tees are charged by law with conducting preliminary investigations

and, where warranted, further formal proceedings. A formal pro-

ceeding is commenced by the filing of charges. Thereafter, the

attorney is required to file an answer. If necessary, a hearing is

held at which testimony and other evidence is received. If un-

professional conduct is found, a presentment containing a summary

of the matter and the committee’s findings of fact is transmitted

to the New Jersey Supreme Court for ultimate disposition. The

Supreme Court conducts no further hearings and the ethics com-

mittees do not make recommendations as to the nature or quan-

tum of discipline to be imposed. New Jersey Court Rules, R1:-

20-1 to 1:20-5. That procedure was followed in this case and

there is no claim that the state proceedings were defective in any

respect.

That entire record, which consisted of certain testi-

mony given under immunity by respondent and his elient

before the New Jersey State Commission of Investiga-

tion, formal charges filed by the Ethies Committee and

respondent’s answer thereto, respondent’s testimony and

that of two character witnesses before the committee,

affidavits submitted by respondent and counsel to the

committee and the committee’s presentment and supple-

mental report, was before the district court (CA, pp. 412-

l4a).*

Respondent appeared personally with counsel before the

three-judge panel on two occasions. On both occasions,

the court questioned counsel as to matters appearing in

the state record and offered respondent the opportunity

to supplement the record in any respect. Respondent,

though conceding that the district court was not bound

hy the decision of the New Jersey Supreme Court as to

the sanction which could be imposed, elected not to sup-

plement the record (CA, pp. 375-76a, 378a, 412-14a, 405a).

At the conclusion of the proceeding, respondent was ad-

vised that the matter would be referred to the entire

court for disposition (CA, p. 416a).

Seven members of the court were of the view that,

while a suspension, disbarment or censure of an attorney

by the New Jersey Supreme Court would ordinarily re-

sult in corresponding action in the district court, the dis-

trict court had an independent obligation to make its own

rational analysis and determination of the discipline to

be imposed in each case and that the discharge of that

obligation in respondent’s case required disbarment (App.

$That record, minus copies of the exhibits appended to the

Presentment of the Ethics Committee, is included in the appendix

filed in the court of appeals. The designation “CA” as used in

this petition refers to that appendix.

D, pp. 39-42a). Two members of the court, although

agreeing that the court had the power to disbar respond-

ent, dissented from the exercise of that power on the

ground that policy considerations dictated that the dis-

trict court impose a discipline identical to that imposed by

the New Jersey Supreme Court unless there existed a

grave reason for not doing so (App. D, pp. 43-50a).

1. To illuminate the disagreement between the district

court and the New Jersey Supreme Court and, thus,

properly to frame the issues considered by the court of

appeals, it is necessary briefly to summarize the facts un-

derlying the finding of professional misconduct (see also

App. A, pp. 3-10a; App. D, 39-40a; App. E, pp. 53-59a).

In 1967, respondent became aware through Clinton B.

Snyder, a local real estate broker, of the impending sale

of Jersey City waterfront property. Respondent com-

municated this information to his client, Ezra Sensibar,

president of Construction Aggregates Corporation, a

firm which specialized in the construction and operation

of port facilities. Thereafter, respondent, Snyder and

Sensibar formed the Port Jersey Corporation to bid on

the waterfront property. The respective ownership inter-

ests in Port Jersey were: Construction Aggregates Cor-

poration 60%, Snyder 20% and respondent 20%. On

August 1, 1967, the waterfront property was auctioned

and Port Jersey was the successful bidder, having bid

$2,040,000 (CA, pp. 53-35a).

The waterfront property was essentially a swamp. In

addition, it was isolated from city services, such as water

and sewerage, and could not be easily reached due to

the lack of access roads. In order to develop the prop-

erty as a port facility, it was necessary in the judgment

of the principals of Port Jersey to secure cooperation

from the City of Jersey City in the form of construction

of access roads, laying of water and sewerage lines to

the property and the providing of favorable tax treat-

ment (CA, pp. 42-45a, 53-54a, 68-69a). At the time Port

Jersey successfully bid on the property, the City of Jer-

sey City had not announced that it was committing itself

to furnish any such cooperation (CA, pp. 40a, 114a).

Shortly after the successful bid, Sensibar arranged a

meeting with John V. Kenny, who, though he held no

office was regarded as tne de facto political leader in

Jersey City. At that meeting Sensibar told Kenny that

Port Jersey would need many forms of cooperation from

the City of Jersey City in order to make the develop-

ment of the port facility possible. Kenny agreed to fur-

nish the cooperation requested and told Sensibar that if

anybody asked for money, he, Sensibar, should come to

him, Kenny, and he would take care of it. After being

assured of cooperation, Sensibar asked Kenny whether

there were any local people who should be taken into the

venture. Kenny responded that he would appreciate Port

Jersey’s employing Comparetto & Kenny as its architect.

Respondent was out of town at the time of the meeting

but was subsequently advised by Sensibar and Snyder

as to what had transpired (CA, pp. 36-37a).

Port Jersey thereafter decided to retain Comparetto &

Kenny as its architects because of Kenny’s suggestion

and because they were “well regarded, well connected

locally”. Respondent negotiated the contractual terms

and drafted the contract, which was entered into in De-

eember 1967 (CA, pp. 39-40a, 114-16a).

In March 1968, respondent and Sensibar met with

Mayor Whelan and City Council President Flaherty at

a party in New York City and respondent explained to

those officials the various forms of cooperation which

Port Jersey would require. No commitment was made by

ee tn © ee ek es 0 at ome

officials. Thereafter, respondent negotiated a contract

with the city of Jersey City in which the city agreed to

construct the necessary access roads and to lay water

and sewerage lines to the property (CA, pp. 41-44a).

Title to the property passed in November 1968. Fol-

lowing the closing of title, the city council adopted vari-

ous resolutions providing for the access roads and water

and sewerage lines. The city council also adopted a reso-

lution authorizing the payment of a 5% brokerage com-

mission to the C. B. Snyder Realty Company, a firm in

which Snyder had a one-third interest. No provision had

been made for the payment of the commission, which

amounted to $102,000, either in the bid specifications, an-

nounced when the property was auctioned, or in the clos-

ing documents which were executed when title passed

(CA, pp. 47a, 139a, 140-141a, 143a).

Upon receipt of the $102,000 in January 1969, Snyder

paid respondent half, pursuant to an oral arrangement.

Respondent deposited the $51,000 he received in a special

account, denominated the Arthur Lawrence Abrams Trust

Account. This money was ultimately utilized to make an

illegal $20,000 payment to the president of the Jersey

City council, Flaherty (CA, pp. 47-51la).

Later that month or in the early part of the following

month, respondent attended a luncheon with Snyder and

Bernard Kenny in Newark. At that time, Kenny stated

that the “organization”, which respondent understood to

mean the Hudson County Democratic Organization,

wanted a percentage of the construction costs of the port

facility in cash. Kenny did not threaten but did indicate

that, in the absence of payment, Port Jersey would ex-

perience difficulties. Respondent did not discuss the mat-

ter further (CA, pp. 51-55a).

Respondent then informed Sensibar of what had hap-

pened. Sensibar thereafter met with Flaherty to discuss

complaints he had received from Port Jersey personnel

about a lack of cooperation from the city. Sensibar men-

tioned his original discussion with John V. Kenny. Flah-

erty replied that he knew about that discussion and told

Sensibar that the organization needed money. He sug-

gested that Port Jersey contribute 3% of the cost of con-

struction. Sensibar refused and the meeting ended (CA,

pp. 117-18a).

A couple of weeks later, Sensibar met with John V.

Kenny. He told Kenny of Flaherty’s demand and re-

minded him of their earlier discussion. Kenny responded

by telling Sensibar that he remembered the discussion

and would stand by it but that a campaign contribution

would be appreciated because the organization had an

expensive campaign. Sensibar did not respond and the

meeting ended. Sensibar returned to Chicago “with the

intention that we would not make any substantial contri-

bution” (CA, pp. 119-20a).

In early April, respondent, Snyder and Bernard Kenny

told Sensibar they were stymied at city hall and sug-

gested to him that he have another meeting with Flah-

erty. A meeting was held in Flaherty’s office on April 19.

At that meeting, Flaherty stated that he needed $140,000

to finance the balance of the campaign and that he had

to go to a few large contributors to get the money. He

also stated that the proposal he had made earlier was un-

realistic and he was now willing to accept 1% of con-

struction costs as a contribution. Sensibar offered a con-

tribution of $10,000 and, after further discussion, agreed

to the making of a $20,000 contribution (CA, pp. 120-

23a).

After the meeting, Sensibar consulted with respondent

and Snyder who both told him “that it was unrealistic

to exnect that we could do as much construction work,

as much business as we were doing in Hudson County

without acceding to a shakedown of some kind. They

[respondent and Snyder] thought that $20,000 in the

circumstances might be nominal and they urged that I

should arrange for us to pay it” (CA, pp. 124a).

Thereafter, respondent issued a $20,000 check on the

Arthur Lawrence Abrams Trust Account at Sensibar’s

request for the purpose of enabling Sensibar to obtain

the $20,000 in cash he had agreed to pay to Flaherty

(CA, pp. 58-59a, 161-63a). At Sensibar’s instruction, re-

spondent falsely represented on the face of the check

that it was issued in payment “For Engineering Serv-

ices”, Thereafter, Sensibar sent respondent a false in-

voice reflecting a $20,000 charge for engineering services

(CA, pp. 311-13a). Sensibar cashed the check and de-

livered the cash to Snyder, who in turn delivered it to

Flaherty (CA, p. 125a). Afterwards, Port Jersey re-

ceived cooperation from the City in regards to sewerage,

water, access roads and favorable tax treatment (CA, pp.

125-26a).

2. On the foregoing facts, the district court differed

with the New Jersey Supreme Court as to the quantum

of discipline to be imposed because it disagreed that the

facts presented mitigating circumstances. Both courts

had previously disbarred an attorney, Colsey, who had

assisted his client in making an extortionate payment to

a public official and, in respondent’s case, disagreed as to

whether there existed a sufficient distinction between the

misconduct in the two cases. As the New Jersey Supreme

Court viewed the matter:

In Colsey an attorney was disbarred for knowingly

participating in a transaction which involved a cor-

rupt payment to satisfy an illegal demand by a

public official. However, unlike the situation here,

the attorney was not in any sense a co-victim,

played a very active part in the corrupt transac-

tion itself and used the fact that he was a member

of the bar as part of the mask for the crime by

creating the appearance that a professional fee

was involved. 63 N.J. at 215, 306 A.2d at 75. We

agree with the position of respondent’s counsel

that Colsey is distinguishable and that disbarment

is not called for. (App. E, p. 60a).

In disagreeing, the district court stated:

We see no basis for distinguishing this case from

In re Colsey, 63 N.J. 210 (1973). Professional mis-

conduct, ‘ike fraud, takes many forms. Variations

in detail are not significant when the underlying

character is the same. A lawyer who countenances

and assists client misconduct for the payment of

an extortionate bribe countenances two offenses:

one, the extortion and two, the bribe. His mini-

mum duty in such circumstances is to advise the

client against it in the strongest terms, and if the

client persists, to disassociate himself from the

matter promptly and completely. And, since a

communication in the course of legal service sought

in aid of the commission of a crime or fraud is not

privileged, N.J. Ev. Rule 26 (2) (a), he may be

under a further duty to report the matter to proper

authorities. (App. D, p. 40a).

As will be discussed in greater detail below, the four

judges comprising the majority in the court of appeals

held that the district court was not permitted to dis-

agree but was required to accept the distinctions made

by the New Jersey Supreme Court.

In addition to disagreeing that respondent’s variation

of participation in the making of an illegal payment to

a pubiic official was significant for disciplinary purposes,

the district court made two observations concerning the

record which reflected a somewhat different approach

than that taken by the New Jersey Supreme Court.

The first of these related to respondent’s 20% owner-

ship interest in the Port Jersey Corporation, a fact which

was undisputed from the outset of the state proceedings

and which was at all times relied upon by respondent in

attempting to justify his participation in the making of

the illegal $20,000 payment. The district court was of

the view that “[t]he acquisition of an interest in the

client’s enterprise was obviously a factor that interfered

with the exercise of free judgment on behalf of the

client.” The New Jersey Supreme Court, in distinguish-

ing respondent’s case from Colsey’s case, referred, as

quoted above, to the fact that Colsey “was not in any

sense a co-victim”, i.e., Colsey had no direct financial in-

terest in his client’s enterprise (App. D, p. 40a).

The second observation made by the district court re-

flecting a different approach was with respect to the

$102,000 commission and the subsequent use of respond-

ent’s share to make the $20,000 illegal payment. The dis-

trict court stated:

Another factor is that Abrams accepted a share

of a real estate commission paid by the City of

Jersey City on the sale of property on public bid.

He deposited that share in his trust aecount, ex-

plaining that he considered it to belong to the

client, but no credible explanation was provided

for the making of the payment in the first place.

The commission aspect bears all the indications of

a device to divert public funds into channels from

which they could be repaid secretly to the public

officials. Justification for its payment is not satis-

factorily shown. (App. D, p. 40a)

In the state proceeding, the commission was considered

in two different contexts. In its initial statement of

charges, the Ethics Committee had charged that respond-

ent’s participation in sharing the commission and in re-

bating $30,000 to Port Jersey violated a New Jersey stat-

ute which had been repealed prior to the commencement

of proceedings (CA, pp. 4-5a). That charge, in the view

of the Supreme Court, was apparently abandoned be-

eause the Ethics Committee made no reference to it in

its supplemental report and, therefore, the court concluded

that “the sharing of the brokerage commission” was not

before it (App. E, pp. 57a, 58a).

The other context in which the commission was con-

sidered was its use to provide the funds from which the

illegal $20,000 payment was made. The accusation had

been made during the questioning of respondent by the

State Commission of Investigation and the Ethies Com-

mittee that the payment of the commission, which was a

discretionary act by the city council of which Flaherty

had been president, was part of a premeditated scheme

to provide a fund from which illegal payments could be

made (CA, pp. 79a, 201-02a, 226a).* In addressing itself

to respondent’s use of his share to create the trust fund

* Respondent’s counsel in respondent’s presence was additional-

ly questioned on this point in the district court proceeding (CA,

pp. 401-05a).

from which the illegal $20,000 payment was made, the

New Jersey Supreme Court made two observations:

(1) The purposes of surrounding the original creation

of the trust fund is nowhere unequivocally ac-

knowledged though the Committee in its present-

ment concluded that the $51,000 retained in re-

spondent’s possession in a trust account that con-

tained only Port Jersey money was used by Port

Jersey to make irregular payments which would

not be reflected upon the corporate books of Port

Jersey. (App. E, p. 58a)

(2) Though the original creation of the trust fund it-

self by the respondent was suspect, the record does

not permit a finding that it was specifically de-

signed for the illegal payment. (App. E, p. 60a)

3. On review, the court of appeals unanimously agreed

that the district court’s order could not stand but could

not agree either as to the reason why it could not stand

or as to whether the district court was to be permitted to

take any subsequent action in the matter. Four separate

opinions were filed (App. A, pp. 1-35a).

The majority, consisting of four judges, reversed stat-

ing that the principles guiding its decision were three in

number:

(1) To recognize and reinforce an absolute and

unfettered power of the district court to admit

and to discipline members of its bar independently

of and separately from admission and disciplinary

procedures of (a) the state courts and (b) this

court.

(2) To recognize that the absolute and unfettered

power of the district court to admit or reject appli-

cations for admissions will be circumscribed to the

extent the district court depends upon the state

court system for eligibility requirements. Thus,

all other things being equal, if a district court by

rule derivatively admits to its bar those admitted

to the state bar, the district court may not arbi-

trarily deny admission to one who is a member in

good standing of the state bar.

(3) To recognize that an absolute and unfettered

power of the district court to discipline lawyers

may be circumscribed to the extent the district

court, in imposing its disciplinary sanctions, relies

upon a state’s legal or factual determinations.

Stated otherwise, the district court’s action may

be circumscribed to the extent it depends in whole

or in part on a state’s actions, either for the com-

mencement of the disciplinary proceedings or for

a stated basis in the determination of the sanction

imposed. (App. A, pp. 15-16a)

Applying those principles, the majority concluded that

the district court’s action did not conform in two respects.

First, it concluded that the district court had relied on

the state court decision in Colsey, supra, for preceden-

tial authority, and that, because it did so, it was re-

quired to draw the identical distinctions between that case

and the present case that were drawn by the New Jersey

Supreme Court. As the majority put it:

Having elected to bottom its own rational analysis

on New Jersey law, the controlling case for the

district court was In Re Abrams—not In Re Col-

sey (App. A, 21a).

oo:

Second, it concluded that the observations expressed by

the district court with respect both to the commission and

to respondent’s interest in his client’s enterprise were im-

permissible because they were not consistent with the

treatment of those matters by the New Jersey Supreme

Court.

As the majority analyzed the issue, the district court’s

views constituted views on “charges” which either had

never been made in the state proceedings (the ownership

interest) or which had been abandoned therein (the com-

mission). Reasoning from this premise, the: majority

proceeded to analyze the district court disciplinary rule

and concluded that the district court had violated its rule

by not having provided respondent with formal notice

of those “charges” prior to imposing discipline (App. A,

pp. 22-26a).

One judge who joined in that opinion filed a separate

opinion expressing the view that the principles established

by this Court in Selling v. Radford, 243 U.S. 46 and

Theard v. United States, 354 U.S. 278 required the dis-

trict court in respondent’s case to impose the identical

discipline imposed by the New Jersey Supreme Court

(App. A, pp. 26-29a).

Three judges dissented from the reversal. They agreed

with the majority that it was impermissible for the dis-

trict court to have considered the commission and respond-

ent’s ownership interest without having put respondent

on notice prior to the commencement of the proceeding

that it would do so. Their analysis differed from the

majority’s in that they relied on due process notice

grounds rather than upon an analysis of the district court

rule to reach their result. Unlike the majority, however,

they deemed it appropriate to remand the case to allow

the district court a further opportunity to reach its judg-

ment regarding the extent of the discipline, based on the

“issue” derived from the state proceeding, or else to seek

to have additional charges filed in accorda. :e with Rule

7 (App. A, pp. 30-34a).

One judge who joined in that opinion filed a separate

opinion in which he expressed the view that he found this

case to be “an exceedingly close case as to whether affirm-

ance is required on this record” (App. A, pp. 34-35a).

Reasons for Granting the Writ

This case presents issues of first impression in this

Court which are of fundamental importance to the pub-

lic, the legal profession and the federal courts. At a

time when the problems of attorney discipline are re-

ceiving more widespread and searching attention by the

profession and by the public, it is imperative that this

court provide authoritative guidance as to how the fed-

eral courts can best deal with those issues.

In concluding en bane that it was impermissible for

the district court to disagree with a state court determi-

nation as to the discipline to be imposed upon an attor-

ney who was clearly proven to have been guilty of serious

misconduct, the court of appeals has forged a precedent

inconsistent both with prior precedent in this court as to

the extent of a federal court’s disciplinary powers and

with the disciplinary practice followed in this court pur-

suant to Rule 8. Moreover, by disagreeing not only as

to the basis for its unprecedented action but also as to

whether the district court may proceed further in this

matter, the court of appeals has created great uncertainty

as to the action a federal court should take when a mem-

ber of its bar has been disciplined by a state court.®

1. This court has consistently held that a federal court

has the power both to prescribe requirements for admis-

sion to practice before that court and to discipline attor-

neys so admitted and this power has consistently been

recognized by the court to be very broad. Ex parte Burr,

22 U.S. (9 Wheat.) 529; Ex parte Secombe, 60 U.S. (19

How.) 9, 13; Ex parte Garland, 71 U.S. (4 Wall.) 333,

378-79; Ex parte Robinson, 86 U.S. (19 Wall.) 505, 512;

Theard v. United States, swpra at 281; In re Ruffalo, 390

U.S. 544, 547.

This court has also consistently held that review of the

exercise of this broad power is confined within the exceed-

ingly narrow limits of clear abuse of discretion. Ex parte

Burr, supra at 529; Ex parte Secombe, supra at 15; Ex

parte Wall, 107 U.S. 265, 272; Theard v. United States,

supra at 281. In the seminal case on the questions of a

federal court’s power to discipline attorneys and a review-

ing court’s power to interpose its judgment as to the ex-

ercise of that power, Chief Justice Marshall explained

that in disciplinary matters:

[D]Jiseretion ought to be exercised with great mod-

eration and judgment; but it must be exercised;

* This case should be contrasted with the recent disciplinary ac-

tion of the Court of Appeals for the District of Columbia circuit.

That court suspended former Attorney General Kleindienst for

one month after the Supreme Court of Arizona had chosen the

lesser discipline of censure and after the District Court for the

District of Columbia had concluded that no discipline at all was

warranted. Jn the Matter of Richard G. Kleindienst, No. 5-37-75,

filed August 11, 1975 (a copy of the as yet unpublished memoran-

dum order is being served on counsel for respondent along with

this petition). The charged misconduct in each instance was iden-

tical.

and no other tribunal can decide, in a case of re-

moval from the bar, with the same means of infor-

mation as the court itself. If there be a revising

tribunal, which possesses controlling authority, that

tribunal will always feel the delicacy of interposing

its authority, and would do so only in a plain case.

Some doubts are felt in this court respecting the

extent of its authority as to the conduct of the cir-

cuit and district courts towards their officers; but

without deciding on this question, the court is not

inclined to interpose, unless it were in a case where

the conduct of the Cireuit or District Court was

irregular, or was flagrantly improper. Ez parte

Burr, supra at 529.

This court has never held that a federal court is bound

by a state determination as to the discipline to be im-

posed. Beginning with Selling v. Radford, supra, this

court has been confronted on five occasions with the ques-

tion of whether either this court or a lower federal court

should disbar an attorney who had been disbarred by a

state court. In re Isserman, 345 U.S. 286: In re Isser-

man, 348 U.S. 1; Theard v. United Sates, supra; In re

Ruffalo, swpra.

* That the question has arisen in this form in probably due to

the fact that traditionally federal courts have, with few excep-

tions, tended to rely on the state courts to conduct disciplinary

proceedings and to make disciplinary determinations. Once made

by a state court, those determinations have been generally accepted

without more by a federal court as a basis for imposing the iden-

tical discipline in the federal court. See generally Agata, Admis-

sions and Discipline of Attorneys in Federal District Court: A

nome and Proposed Rules, 3 Hofstra L.Rev. 249 et seg. (Spring

In Selling, it was contended that simply because the

state court had disbarred, this court was required to do

so. This court’s response was it “should recognize the

absence of fair private and professional character inher-

ently arising as the result of [the state disbarment] so

far as we are at liberty to do so consistently with the

duty resting upon us to determine for ourselves the right

to continue to be a member of this Bar”, 243 U.S. at 50.

This court went on to state that it would disbar in such

a case:

unless, from an intrinsic consideration of the state

record, one or all of the following conditions should

appear: 1, that the state procedure, from want of

notice or opportunity to be heard, was wanting in

due process; 2, that there was such an infirmity of

proof as to facts found to have established the

want of fair private and professional character as

to give rise to a clear conviction on our part that

we could not, consistently with our duty, accept

as final the conclusion on that subject; or 3, that

some other grave reason existed which should con-

vince us that to allow the natural consequences of

the judgment to have their effect would conflict

with the duty which rests upon us not to disbar

except upon the conviction that, under the prin-

ciples of right and justice, we were constrained

so todo. Id. at 50-51.

In applying that precedent to the disciplinary actions

of lower federal courts, this court has twice reversed

disbarment orders which were based on state judgments,

holding on both occasions that the lower federal court

could not, consistently with its independent obligation to

determine for itself whether discipline should be imposed,

accept the state judgment in the matter.. Theard v.

United States, swpra; In re Ruffalo, supra.

In the Isserman eases, this court successively split four

to four and three to three on the question of whether it

should disbar an attorney who had been disbarred by a

state court following the affirmance by this court of his

conviction for contempt committed during a trial (Sacher

v. United States, 343 U.S. 1). The disagreement in both

eases centered primarily on the question of whether sim-

ple contempt constituted an adequate basis for disbar-

ment.’

From the foregoing discussion, it is, therefore, clear

that unbroken precedent in this court required the district

court to make its own independent determination of the

appropriate discipline to be imposed on respondent and

required the court of appeals not to interfere with that

determination unless it found a clear abuse of discretion.

2. Reported precedent aside, the disciplinary practice

of this court in recent years supports the district court’s

action in this case. This court does not, in imposing dis-

cipline on members of its bar, accept the proposition that

it is required to impose the identical quantum of disci-

pline which has been imposed by a state court. Attorneys

who have been suspended for misconduct by state courts

have regularly been disbarred by this court.’ See, e.g.,

In re Disbarment of Osborne, 420 U.S. 918 (three year

suspension—New York); Jn re Disbarment of Buttles,

TIn Sacher v. Association of the Bar, 347 U.S. 288, this court

held that simple contempt involving no moral turpitude did not

furnish an adequate basis for a lower federal court to disbar an

attorney.

8 The court of appeals was fully aware of this court’s disciplin-

ary practices but apparently concluded that those practices were

not reievant to a consideration of the issues before it (App. A,

p. lla).

‘i mee

419 U.S. 1101 (two year suspension—New York); In re

Disbarment of Mades, 414 U.S. 1154 (two year suspen-

sion—Massachusetts); In re Disbarment of Pavsner, 409

U.S. 1102 (three year suspension—New York).

3. The action of the court of appeals in this case raises

substantial questions requiring this court’s review be-

cause that action severely limits the exercise of independ-

ent federal court determination in disciplinary matters

in several critical respects.

First, by holding that the district court was bound by

state law and was, thus, required to accept the distinc

tions which the state court had drawn between two cases,

the court of appeals has established within its circuit a

novel and significant principle which, if followed, would

fundamentally alter the role of the federal courts in dis-

ciplinary matters.

Until the court of appeals’ decision in this case, no

court or commentator had ever accepted the proposition

that federal courts are bound in any way to state law in

exercising their independent disciplinary powers. See,

e.g., Cheatham, The Reach of Federal Action Over The

Profession of Law, 18 Stan. L. Rev. 1288, 1291 (1966).

None of the cases previously decided by this court sup-

port that proposition and petitioner respectfully submits

that the proposition is totally inconsistent with the con-

cept of independent determination.

Second, by holding that the district court violated its

own disciplinary rule, the court of appeals has signifi-

cantly enlarged the scope of review of disciplinary deter-

minations and, thus, has correspondingly significantly di-

minished the independence of federal courts within the

circuit in disciplinary matters.

If, as this court has repeatedly held, an exercise of

disciplinary power by a federal court is reviewable only

within the exceedingly narrow limits of clear abuse of

discretion, the question of whether a lower court correctly

applied its rule should never arise because the ultimate.

question for the reviewing court should be whether the

discipline imposed was either clearly improper or was im-

posed in violation of fundamental rights. To the extent,

therefore, that the opinion of the court of appeals can

be said to furnish precedent for an expanded scope of

review in disciplinary matters, it would, if followed, signi-

ficantly alter the relationship between district courts and

reviewing courts in this highly sensitive area.

Because the two novel holdings discussed above con-

stituted the entire basis upon which the court of appeals

reversed the district court’s disciplinary determination,

the necessity for review by this court is clear.

The alternative analysis employed in the concurring

and dissenting opinion, in which three judges joined

raises an equally substantial question requiring this

court’s review because that analysis is also, in petitioner’s

view, inconsistent with prior precedent of this court.

The three judges who dissented from the reversal were

in agreement with the majority that it was improper for

the district court to treat two matters in the common evi-

dentiary record differently than they had been treated

by the New Jersey Supreme Court, but were not in agree-

ment that the basis for this conclusion was either that

the district court was required to follow state law or that

it had violated its disciplinary rule.°

®No view was expressed in this opinion as to the majority’s

conclusion that the district court was bound by state law. As to

the conclusion that the district court violated its rule, however,

the view taken was that it was an inappropriate basis for decision

because (1) the district court’s actions suggested that it believed

its rules had been implemented by the procedures followed, (2)

the interpretation of local rules is primarily committed to the

courts which promulgated them, and (3) the meaning of the rule

in the procedural context that developed was uncertain (App.

A, p. 32a).

They based their conclusion on the due process ground

of lack of adequate notice of the charges upon which dis-

cipline was imposed. This court has held in Jn re Ruffalo,

supra, that, where a federal court disbars an attorney on

the basis of a state record, the federal disbarment suf-

fers from any due process infirmity in the state proceed-

ing. The infirmity found in Ruffalo was that an entirely

new charge was formally lodged against an attorney after

he had both filed his answer to the original charges and

had testified and provided other evidence. The new

charge ultimately furnished the entire basis for the fed-

eral disbarment.

Ruffalo is clearly distinguishable from the case at bar

for four reasons. First, no due process infirmity was

either claimed or found to have existed in the state pro-

ceeding. Second, no new charge was ever filed against

respondent. Third, the two matters treated differently

by the district court were matters which were not only

considered relevant to an original charge by the Ethics

Committee, by the New Jersey Supreme Court, and by

the district court but were matters as to which respond-

ent had been questioned by the State Commission of In-

vestigation, the Ethics Committee, and the district court

(See pp. 15-17, supra). Fourth, a reviewing court could

hardly conclude that the additional matters considered by

the district court constituted the entire or, indeed, any

substantial basis for the discipline imposed.

By construing Ruffalo, therefore, to require remand in

this case, the concurring and dissenting judges have

created a precedent which, if followed, would require a

federal court either to accept a state court’s factual ana-

lysis or run the risk of having a reviewing court conclude

that its disagreement with that analysis constituted, for

due process purposes, the filing of new charges. Such a

result is not consistent with the principle that a federal

court must make its own independent determination of

the disciplinary action to be taken.

CONCLUSION

For the foregoing reasons, it is respectfully sub-

mitted that the petition for a writ of certiorari should

be granted.

JONATHAN L. GoLpsTEIN,

United States Attorney for the

District of New Jersey,

Joun J. Barry,

Maryanne T. Desmonn,

Assistant United States Attorneys,

Federal Building,

970 Broad Street,

Newark, New Jersey 07101

Attorneys for Petitioner.

SepreMBER 1975

APPENDIX A

Opinion of the United States Court of Appeals

UNITED STATES COURT OF APPEALS

For tHe Turrp Circuit

No. 75-1029

I~ THE MATYER OF:

ArtHurR LawrRENCE ABRAMS,

An attorney-at-law

Arthur Lawrence Abrams,

Appellant

AppEAL From THE Uwirep States Districr Court For THE

District or New JERSEY.

(D.C. Mise. No. 74-53)

Argued May 8, 1975

Before: Serrz, Chief Judge, Van Dusen, Aupisert, ADAMS,

Rosenn, Hunter and Wels, Circwt Judges.

OPINION OF THE CoURT

(Filed—June 30, 1975)

{la}

Appendiz A

Sills, Beck, Cummis, Radin & Tischman

Clive S. Cummis, Esq., Of Counsel

Jerald D. Baranoff, On the Brief

33 Washington Street

Newark. New Jersey 07102

Counsel for Appellant

Clyde A. Szuch, Esq.

Pitney, Hardin & Kipp

570 Broad Street

Newark, New Jersey 07102

Counsel for New Jersey State Bar

Association, Amicus Curiae

Jonathan L. Goldstein, U. S. Attorney

John J. Barry, Assistant U. S. Attorney

Maryanne T. Desmond, Assistant U. S.

Attorney, On the Brief

Federal Building

Newark, New Jersey 07101

Cownsel for Appellee

William J. Brennan, II

Co-Chairman, Ethics Committee

1 Palmer Square

Princeton, New Jersey 08540

Thomas F. Campion

Co-Chairman, Ethics Committee

570 Broad Street

Newark, New Jersey 07102

Counsel for amicus curiae, Federal Bar

Association (Newark Chapter)

ALpIsert, Circuit Judge.

Arthur Lawrence Abrams appeals from an order of

the United States District Court for the District of New

Appendi«c A

Jersey disbarring him from the practice of law in that

court. The circumstances giving rise to this litigation re-

late to Abrams’ issuance of a check, drawn on a trust ac-

count and ultimately used to satisfy the extortion of Jer-

sey City officials. The Supreme Court of New Jersey or-

dered his suspension from the practice of law for one

year. In re Abrams, 65 N.J. 172, 320 A.2d 471 (1974).

Acting on the same evidentiary material, and without con-

ducting a separate evidentiary hearing, the district court

entered its order. The question presented for review is

the propriety of the district court’s action.

Although the facts relevant to the charge against

Abrams are not in dispute, we will accept the statement of

facts presented in the United States Attorney’s brief de-

fending the action of the district court:

The order appealed from had its genesis in an in-

vestigation conducted by the New Jersey State Com-

mission of Investigation (“SCI”). In August 1971,

ORDER

For the reasons stated, it is hereby ordered that the name of

Arthur Lawrence Abrams be, and the same hereby is, stricken

from the roll of attorneys permitted to practice before this Court,

and until the further order of the Court.

In re Abrams, 385 F. Supp. 1210, 1212 (D.N.J. 1974). Al-

though the last clause renders the order susceptible to the in-

terpretation that the court ordered something less than a final

disbarment, the parties have treated this case as one of disbar-

ment. Accordingly, we also will treat the order as a disbar-

ment.

Appendix A

appellant, Arthur Lawrence Abrams, and his client

Ezra Sensibar refused, on the basis of the Fifth

Amendment, to answer certain quesiions pro-

pounded by the SCI. Thereafter, formal immunity

was conferred upon them and their subsequent pub-

lic testimony in October 1971 formed the predicate

for the filing of formal charges against Abrams by

the Essex County Ethic: Committee. At Abrams’

specific request, his testimony and that of Sensibar

was made part of the record of the ensuing disci-

plinary proceeding. Although several charges were

initially filed against Abrams, only one charge is

now relevant. That charge was as follows:

On April 22, 1969, by check bearing that date

drawn on his trust account in the National New-

ark and Essex Bank, in Newark, respondent did

pay to Construction Aggregates Corporation the

sum of $20,000 allegedly for engineering services

which sum respondent well knew would be used

by said corporation, or an officer thereof, for an

illegal and improper purpose contrary to and in

violation of N.J.S. 2A :93-6 as a bribe to and to

satisfy the extortionate demands of certain pub-

lie officials of the City of Jersey City.

The facts relevant to that charge are set forth below.

In 1967, appellant became aware through Clinton

B. Snyder, a Jersey City real estate broker, of the

impending sale of Jersey City waterfront property.

Appellant communicated this information to Ezra

Sensibar, president of Construction Aggregates

Corporation, a firm which specialized in the con-

struction and operation of port facilities. There-

after, appellant. Snyder and Sensibar formed the

Appendia A

E.S.C.A. Corporation (later renamed the Port Jer-

sey Corporation and hereinafter referred to as

“Port Jersey”) to bid on the Jersey City water-

front property. The respective ownership interests

in Port Jersey were: Construction Aggregates Cor-

poration 60%, Snyder 20% and appellant 20%. On

August 1, 1967, the waterfront property was auc-

tioned and Port Jersey was the successful bidder,

having bid $2,040,000.

The waterfront property was essentially a swamp.

In addition, it was isolated from city services, such

as water and sewersge, and could not be easily

reached due to the .ack of access roads. In order

to develop the property as a port facility, it was

necessary in the judgment of the principals of Port

Jersey to secure cooperation from the City of Jer-

sey City in the form of construction of access roads

and water and sewerage lines to the property and

the providing of favorable tax treatment. At the

time Port Jersey successfully bid on the property,

the City of Jersey City had not announced that it

was committing itself to furnish the various forms

of cooperation Abrams and his co-venturers deemed

essential.

Shortly after the auction, a meeting was arranged

by Sensibar to obtain the necessary cooperation.

The meeting was held at the offices of Comparetto

and Kenny, a local architectural and engineering

firm, and was attended by John V. Kenny [de facto

political leader of Hudson County], Sensibar and

Snyder. At the meeting, Sensibar told John V.

Kenny that Port Jersey would need many forms

of cooperation from the City of Jersey City in

order to make the development of the port facility

Appendix A

possible. Kenny agreed to furnish the cooperation

requested and told Sensibar that, if anybody asked

him for money, he, Sensibar, should come to him,

Kenny, and he would take care of it. After being

assured of cooperation, Sensibar asked Kenny

whether there were any local people who should be

taken into the venture. Kenny responded that he

would appreciate Port Jersey’s employing Com-

paretto and Kenny as its architect. Abrams was

out of town at the time of the meeting but was

subsequently advised by Sensibar and Snyder as

to what had transpired at the meeting.

Port Jersey thereafter decided to retain Com-

paretto and Kenny as its architects because of

John V. Kenny’s suggestion and because they were

“well regarded, well connected locally.” Abrams

negotiated the contractual terms and drafted the

contract, which was entered into in December 1967.

In March of 1968, Abrams and Sensibar met with

Mayor Whelan and City Council President Flaherty

at a party at the New York Athletic Club and

Abrams explained to these ofiicials the various

forms of cooperation which Port Jersey would re-

quire. No commitment was made at that time to

furnish the cooperation requested. Thereafter,

Abrams negotiated a contract with the City of Jer-

sey City in which the City agreed to construct the

necessary access roads and to lay water and sewer-

age lines to the property.

Title to the property did not pass until November

21, 1968. During the period intervening between

the successful bid and the closing on the property,

appellant, in addition to the negotiations described

Appendia A

above had negotiated certain purchases of adjoin-

ing properties in order to resolve potential title

problems and had also negotiated a $6,000,000 de-

velopment loan.

Following the closing of title, the city council of

Jersey City adopted various resolutions providing

for the furnishing of the access roads, water and

sewerage lines. In addition, the city council adopted

a resolution authorizing the payment of a 5%

brokerage commission to the C.B. Snyder Realty

Company, a firm in which Snyder had a one-third

interest. No provision had been made for the pay-

ment of the commission, which amounted to $102,-

000, either in the bid specifications, announced when

the property was auctioned, or in the closing docu-

ments which were executed when title passed.

Upon receipt of the $102,000 in January 1969,

Snyder paid Abrams half, pursuant to an oral ar-

rangement entered into between them at some ear-

lier date. Abrams deposited the $51,000 he re-

ceived in a special account, denominated the Arthur

Lawrence Abrams Trust Account. This money re-

mained in the trust account for more than two years

and was ultimately utilized in part to make a $20,000

payment to the president of the Jersey City coun-

cil.”

2Of this transaction, the state court noted:

The respondent testified that although the $51,000 was his

to do with as he pleased, he considered that he should

ethically turn it over to ESCA [Port Jersey]. He did that

by placing it in an “Arthur Lawrence Abrams Trust Ac-

count” in the National Newark and Essex Bank; at one

point he described the $51,UJ0 in the trust account as “an

emergency fund.”

65 N.J. at 173, 320 A.2d at 472.

Appendix A

In late January or early February 1969, Abrams

attended a luncheon with Snyder and Bernard

Kenny at the Downtown Club in Newark. At that

time, Kenny stated that the “organization”, which

appellant took to mean the Hudson County Demo-

cratic Organization, wanted a percentage of the con-

struction costs of the port facility in cash. At

that time, the estimated cost of construction of the

projected port facility was somewhere between fifty

and one hundred million dollars. When this de-

mand was made, Abrams didn’t think it was neces-

sary to ask Kenny any details nor did Kenny think

it was necessary to tell appellant any details.

Kenny did not threaten but did indicate that, in

the absence of payment, Port Jersey would experi-

ence difficulties. Abrams did not argue with Kenny

or discuss the matter further with him.

Following the meeting, Abrams telephoned Sensi-

bar in Chicago and was told by Sensibar that he,

Sensibar, would take care of it. Thereafter, Sensi-

bar met with Flaherty in New York. He told Flah-

erty that he was getting complaints about a lack of

cooperation and reminded Flaherty of his, Sensi-

bar’s, original discussion with John V. Kenny and

the promise of cooperation. Flaherty said that he

knew about that discussion but that the organiza-

tion needed money. He suggested to Sensibar that

Port Jersey contribute 3% of the cost of construc-

tion. Sensibar refused and the meeting ended.

A couple of weeks later, Sensibar arranged a

meeting with John V. Kenny. He told Kenny of

Flaherty’s demand and reminded him of their earl-

ier discussion. Kenny responded by telling Sensi-

Appendix A

bar that he remembered the discussion and would

stand by it but that a campaign contribution would

be appreciated because the organization had an ex-

pensive campaign. Sensibar did not respond and

the meeting ended. Sensibar returned to Chicago

“with the intention that we would not make any

substantial contribution”.

In early April, Abrams, Snyder and Bernard

Kenny told Sensibar they were stymied at city hall

and suggested that he, Sensibar, have another meet-

ing with Flaherty. A meeting was held in Flaherty’s

office on April 19 between Sensibar and Flaherty.

At that meeting, Flaherty told Sensibar that he,

Flaherty, needed $140,000 to finance the balance of

the campaign and that he had to go to a few large

contributors to get the money. He also told Sensi-

bar that the proposal he, Flaherty, had made be-

fore was unrealistic and he was now willing to come

down to 1% of construction costs as a contribu-

tion. Sensibar offered a contribution of $10,000,

and, after discussion, Sensibar and Flaherty agreed

to the making of a $20,000 contribution.

After this meeting with Flaherty, Sensibar con-

sulted with Abrams and Snyder, who both told him

“that it was unrealistic to expect that we could do

as much construction work, as much business as

we were doing in Hudson County without acceding

to a shakedown of some kind. They [Abrams and

Snyder] thought that $20,000 in the circumstances

might be nominal and they urged that I should ar-

range for us to pay it”.

Thereafter, Abrams issued a $20,000 check on the

Arthur Lawrence Abrams Trust Account at Sensi-

10a

Appendix A

bar’s request for the purpose of enabling Sensibar

to obtain the $20,000 in cash he had agreed to pay

to Flaherty. At Sensibar’s instruction, Abrams

falsely represented on the face of the check that

it was issued in payment “For Engineering Serv-

ices”. Thereafter, Sensibar sent Abrams a false in-

voice reflecting a $20,000 charge for engineering

services. Sensibar cashed the check and delivered

the cash to Snyder, who in turn delivered it to

Flaherty. Afterwards, Port Jersey received coop-

eration from the City in regards to sewerage, water,

access roads and favorable tax treatment.

U.S. Attorney’s Brief at 4.9 (footnotes and appendix ref-

erences omitted).

In 1973, the Essex County Ethics Committee charged

Abrams with various ethical violations stemming from his

activities for Port Jersey. In reviewing those charges,

however, the New Jersey Supreme Court concerned itself

only with Abrams’ “knowing participation in the $20,000

payment to the Jersey City officials.” In re Abrams,

supra, 69 N.J. at 177, 320 A.2d at 474. After detailing

the factual circumstances which spawned the allegations

of impropriety, the state court stated:

We are concerned with the respondent, a member of

the bar who, apart from his financial interest in the

venture, was acting as legal counsel and was bound

by the high ethical principles of his profession.

Those principles clearly dictated that he play no part

whatever in the corrupt $20,000 payment to the

public officials of Jersey City. We are entirely

satisfied that respondent’s participation in the cor-

rupt payment ... was unethical and calls for some

measure of discipline.

lla

Appendix A

. . . We agree with the position of respondent’s

counsel that . . . disbarment is not called for. But

we disagree that “discipline which exceeds repri-

mand” would be excessive. ...

The determination as to the measure of discipline

is difficult and, as we have repeatedly pointed out,

“each case must rest largely upon its own particular

circumstances.” . . . We have concluded that the

respondent’s professional dereliction warrants sus-

pension from the practice of law for a period of

one year and until further order; judgment to that

effect will be entered.

Ibid. at 178-79, 320 A.2d at 474-75.

Il.

Preliminarily we emphasize that which is before us and

that which is not. We are not to decide Abrams’ right

to practice in this court. We are not in the position of the

United States Supreme Court reviewing a disciplinary ac-

tion imposed by a state court or determining one’s right

to continue to practice in that Court. We are to decide if

reversible error was committed when the district court,

under the circumstances of this case, barred Abrams from

practicing in that court after the state court had imposed

only a one-year suspension.

We agree totally with the United States Attorney that

the starting point for analysis is the unquestioned princi-

ple that the District Court of New Jersey, like all federal

courts, has the power both to prescribe requirements for

admission to practice before that court and to discipline

attorneys who have been admitted to practice before that

12a

Appendix A

court. Ez parte Robinson, 86 U.S. (19 Wall.) 505, 512

(1873); Ex parte Garland, 71 U.S. (4 Wall.) 333, 378-79

(1866); Ex parte Secombe, 60 US. (19 How.) 9, 13

(1859); Rodgers v. United States Steel Corp., 508 F.2d

152, 163 (3d Cir. 1975); see U.S. Const. art. III, §1; 28

U.S.C. §2071; Rule 83, F.R. Civ. P.

From the earliest days of this nation, the power has

been recognized as broad. See In re Ruffalo, 390 US. 544,

047 (1968); Theard v. United States, 354 U.S. 278, 281

(1957) ; Ex parte Secombe, supra, 60 U.S. at 13; Ex parte

Burr, 22 U.S. 529 (1824). However, its exercise is not

without limits. As Chief Justice Marshall wrote, a balance

must be struck:

On one hand, the profession of an attorney is of

great unportance to an individual, and the pros-

perity of his whole life may depend on its exercise.

The right to exercise it ought not to be lightly or

capriciously taken from him. On the other, it is ex-

tremely desirable that the respectability of the bar

should be maintained, and that its harmony with

the bench should be preserved. For these objects,

some controlling power, some discretion, ought to

reside in the court. This discretion ought to be ex-

ercised with great moderation and judgment; but

it must be exercised; and no other tribunal can

decide, in a case of removal from the bar, with the

same means of information as the court itself.

Ex parte Burr, supra, 22 U.S. at 529-30.

Although a disbarment proceeding is not criminal in

nature, it has consequences which remove it from the ordi-

nary run of civil case. Konigsberg v. State Bar, 353 U.S.

252, 257 (1957); see Anonymous v. Association of the Bar,

— F. 2d —, 17 Crim. L. Rptr. 2083 (2d Cir., Apr. 3, 1975).

13a

Appendix A

“Disbarment, designed to protect the public, is a punish-

ment or penalty imposed on the lawyer. Ex parte Gar-

land, 4 Wall. 333, 380; Spevack v. Klein, 385 U.S. 511,

515.” In re Ruffalo, supra, 390 U.S. at 550.

In striking the appropriate balance, the district courts

must not operate in a vacuum. If the disciplinary proceed-

ings derive from state court action, federal courts are not

totally free to ignore the original state proceedings:

If the accusation rests on disbarment by a state

court, such determination of course brirgs title

deeds of high respect. But it is not conclusively

binding on the federal courts. The recognition that

must be accorded such a state judgment and the

extent of the responsibility that remains in the fed-

eral judiciary were authoritatively expounded in

Selling v. Radford, 243 U.S. 46. The short of it is

that disbarment by federal courts does not auto-

matically flow from disbarment by state courts. Of

the conditions that qualify such a state court judg-

ment, the one here relevant is that some “grave

reason existed which should convince us that to al-

low the natural consequences of the judgment to

have their effect would conflict with the duty which

rests upon us not to disbar except upon the convic-

tion that, under the principles of right and justice,

we were constrained so to do.” Jd., at 51.

Theard v. United States, supra, 354 U.S. at 282.

Til.

Our task is one which is “always painful”, involving

as it does a “proceeding for disbarment of a lawyer.” *

8 Theard v. United States, supra, 354 U. S. at 279 (Frank-

furter, J.).

l4a

Appendiz A

But it is also more, for the district court’s permanent ter-

mination of Abrams’ right to practice his profession in

the New Jersey district court constitutes a substantially

more drastic penalty than that first imposed by the state

court. Thus, sensitive personal, institutional and societal

interests quickly surface and compete with one another.

These separate interests clamor for vindication, and

they do so in a jural environment that is fraught with ten-

sion and devoid of decisional and precedential guideposts.

The United States Attorney suggests that In re Fleck, 419

F.2d 1040 (6th Cir. 1969), cert. denied, 397 U.S. 1074

(1970), comes close. We disagree and find little guidance

from Fleck. There the state court suspended the lawyers

indefinitely ; thereafter the district court disbarred them.

We are not at all certain that a substantial difference

exists between indefinite suspension and disbarment of a

lawyer.* Thus, in Roscoe Pound’s phrase, the “body of

*This is made abundantly clear in Jn re Fleck, 419 F.2d at

1041, in the appendix setting forth the district court’s opinion:

This matter is before the Court pursuyant to an order

that respondents show cause why they should not be dis-

barred from the practice of law in this Court. The re-

spondents were indefinitely suspended from the practice of

law in Ohio on December 6, 1961. (Cleveland Bar Asso-

ciation v. Fleck et al., 172 Ohio St. 467, 178 N-E.2d 782.)

On June 15, 1962 respondents were suspended forthwith

from the practice of law in this Court, and pursuant to

Rule 1(E) of the Rules of this Court respondents were

ordered to show cause why they should not also be disbarred

from practice in this court. Rule 1(E) provides in part:

“Disbarment an. Discipline. Any member of the bar

of this court may for good cause shown and after an

opportunity has been given him to be heard, be dis-

(Footnote continued on following page)

15a

Appendiz A

authoritative materials” relevant to our inquiry gives gen-

eral, but not specific, guidance. The» are no “precepts

attaching a definite detailed legal consequence to a defi-

nite, detailed state of facts”; at best, we have only some

“authoritative starting points for legal reasoning.” ®

Supplied only with “authoritative starting points of

legal reasoning” distilled from the Supreme Court teach-

ings, we perceive our role in reviewing the district court’s

action to be extremely limited:

(1) To recognize and reinforce an absolute and un-

fettered power of the district court to admit and to dis-

cipline members of its bar independently of and sepa-

rately from admission and disciplinary procedures of (a)

the state courts and (b) this court.

(2) To recognize that the absolute and unfettered power

of the district court to admit or reject applications for

admissions will be circumscribed to the extent the dis-

trict court depends upon the state court system for eligi-

bility requirements. Thus, all other things being equal, if

(Footnote continued from preceding page)

barred, suspended from practice for a definite time, repri-

manded, or subjected to such other discipline as the court

may deem proper.”

(Emphasis supplied)

It appears that the district court rule contemplated suspension

“for a definite time.” Because the Ohio state court had “indefini-

tely suspended” the attorneys, the district court ordered them to

show cause “why they should not also be disbarred from practice

in this court.”

5 Pound, Hierarchy of Sources and Forms in Different Systems

of Law, 7 Tut. L. Rev. 475, 476, 482, 483 (1933).

l6a

Appendix A

a district court by rule derivatively admits to its bar

those admitted to the state bar, the district court may nt

arbitrarily deny admission to one who is a member in

good standing of the state bar.

(3) To recognize that an absolute and unfettered power

of the district court to discipline lawyers may be circum-

seribed to the extent the district court, in imposing its

disciplinary sanctions, relies upon a state’s legal or factual

determinations. Stated otherwise, the district court’s

action may be circumscribed to the extent it depends in

whole or in part on a state’s actions, either for the com-

mencement of the disciplinary proceedings or for a stated

basis in the determination of the sanction imposed.

IV.

We now turn to the application of these guidelines to

the case at hand.

Initially, we observe the district court’s basis for ad-

mitting Abrams to its bar: “Abrams is a member of the

bar of this Court by derivative admission on motion, by

virtue of his status as an attorney licensed to practice by

the Supreme Court of New Jersey. Local Rule 4.” 385

F. Supp. at 1212. Thus, the district court has sacrificed

some of its total independence of the state court system

with respect to its admission procedures.*

* Rule 4 of the United States District Court for the District of

New Jersey provides in part:

A. The bar of this court shall consist of those persons

heretofore admitted to practice in this court and those who

may hereafter be admitted in accordance with these rules.

(Footnote continued on following page)

17a

Appendiz A

The majority opinion for the divided district court de-

scribed the disciplinary proceedings under Local Rule 7.”

(Footnote continued from preceding page)

B. Any attorney licensed to practice by the Supreme

Court of New Jersey may be admitted as an attorney at

law on motion of a member of the bar of this court, made

in open court, and upon taking the prescribed oath and sign-

ing the roll.

C. Any member in good standing of the bar of any

court of the United States or of the highest court of any

state, who is not eligible for admission to the bar of this

court under sul livision B of this rule, may in the dis-

cretion of the court, on motion, be permitted to appear and

participate in a particular case; provided, however, that

such appearances and participation in civil actions, indivi-

dually or by a law firm of which said attorney is a member

or associate, shall be limited to not more than three actions

in any calendar year... .

7. Rule 7 of the United States District Court for the District

of New Jersey provides, in part:

(1) The chief judge shall have charge of all matters re-

lating to the discipline of members of the bar.

(2) The court may make an order in a disciplinary pro-

ceeding disbarring, suspending or censuring, or taking such

other action as justice may require, with respect to a mem-

ber of the bar of this court:

i f a court of any

(a) Who has resigned from the bar o

State, Territory, District, Commonwealth or Possession.

(b) Who has been disbarred, suspended from practice

or censured in any State, Territory, District, Common-

wealth or Possession ;

(Footnote continued on following page)

18a

Appendix A

(Footnote continued from preceding page)

al turpitude in any State, Territory, District, Common-

wealth or Possession; or

(d) Who is guilty of conduct unbecoming a member

of the bar of this court. Without limiting the generality

of the foregoing, such misconduct shall be deemed to in-

clude fraud, deceit, malpractice, conduct prejudicial to the

administration of justice, or violation of the Canons of

Professional Ethics of the American Bar Association.

(3) Proceedings within subdivisions (a), (b), and (c) of

Paragraph 2 may be initiated by an order requiring the re-

spondent to show cause within 30 days after service thereof

on him, personally or by mail, why he should not be disci-

plined. Upon the issuance of such order the chief judge

may, for good cause, temporarily suspend the respondent

pending the termination of the proceedings. Upon the re-

turn of said order, if the respondent fails to appear or, if

he appears and does not contest, the court shall take such

action as justice may require. If the respondent appears

and contests, the chief judge shall prescribe procedures to

formulate the issues and to provide for a hearing in a man-

ner similar to that set forth in Paragraph 4 hereof.

(4) Proceedings within subdivision (d) of Paragraph 2

shall be presented to the chief judge, and, if he deems the

charges of professional misconduct of sufficient weight, he

shall refer them for preliminary investigation and recom-

mendation to a committee of members of the bar of the

court designated by him or to the United States Attorney.

The recommendation shall be presented to the chief judge.

Thereupon, with the approval of the chief judge, the com-

mittee designated or the United States Attorney shall pro-

ceed against the defendant by a petition setting forth the

charges against him and an order requiring him to file an

answer and show cause within 30 days after service on

(Footnote continued on following page)

19a

Appendix A

In its statement of reasons, the district court acknowl-

edged a responsibility to the New Jersey state court sys-

tem, implicitly incorporating the statement of “facts and

circumstances” set forth in the opinion of the New Jersey

Supreme Court. See 385 F. Supp. at 1211. Thus, the

district court found no adjudicative facts on its own; in-

stead it relied exclusively on those found by the state

court. The district court then conceded:

Ordinarily, a suspension, disbarment or censure by

the Supreme Court of New Jersey will result in

corresponding action here. Local Rule 7. But this

accommodation does not necessarily suffice to dis-

charge the independent obligation of this Court to

take appropriate action on its own rational analy-

sis and determination, although in doing so it will

hold the greatest respect for, and give due weight

and consideration to, the views of the Supreme

Court. In re Ruffalo, 390 U.S. 544, 88 S. Ct. 1222,

20 L. Ed. 2d 117 (1968); In re Wilkes, 494 F.2d

472, at 474-75 (C.A. 5, 1974).

Ibid. at 1212.

(Footnote continued from preceding page)

him, personally or by mail, of the petition and order why

he should not be disciplined. Upon respondent’s answer

to the petition, the chief judge may set the matter for

prompt hearing before himself, or a court of one or more

judges, or may appoint a master to hear and report his

findings and recommendations. After such a hearing or

report, or if no answer is made by the respondent, the court

shall take such action as justice may require... .

20a

Appendiz A

We acknowledge the right of the district court “to dis-

charge [an] independent obligation” and to “take appro-

priate action on its own rational analysis and determina-

tion.” We further acknowledge that the “appropriate

action” may be at variance with that taken by the state

court system. We also acknowledge that the district court

may draw inferences from “facts and circumstances”

which differ from those drawn by the state. Especially do

we believe that the district court may emphasize counter-

vailing federal considerations. Cf., e.g., Byrd v. Blue

Ridge Rural Elec. Cooperative, Inc., 356 U.S. 525, 537

(1958). But “appropriate action” must always embody

a proper application of governing legal precepts. We

conclude that the district court’s action was deficient in

this respect.

For “its own rational analysis and determination” the

district court relied in part on a New Jersey Supreme

Court decision for precedential authority for its action.

We see no basis for distinguishing this case from

In re Colsey, 63 N.J. 210, 306 A.2d (1973). Pro-

fessional misconduct, like fraud, takes many forms.

Variations in detail are not significant when the

underlying character is the same. A lawyer who

countenances and assists client misconduct for the

payment of an extortionate bribe countenances two

offenses: one, the extortion and two, the bribe. His

minimum duty in such circumstances is to advise

the client against it in the strongest terms, and if

the client persists, to disassociate himself from the

matter promptly and completely. And, since a

communication in the course of legal service sought

in aid of the commission of a crime or fraud is not

2la

Appendix A

privileged, N.J. Ev. Rule 26(2)(a), he may be under

a further duty to report the matter to proper au-

thorities.

385 F. Supp. at 1211-12.

In the context of its announced objective to “hold the

greatest respect for, and give due weight and considera-

tion to, the views of the [New Jersey] Supreme Court,”

the district court was not free to rely upon Colsey for

New Jersey precedential guidance. Having elected to bot-

tom its own rational analysis on New Jersey law, the con-

trolling case for the district court was In re Abrams—

not In re Colsey. And, in Abrams, the New Jersey Su-

preme Court explicitly concluded that Colsey was dis-

tinguishable:

In Colsey (63 N.J. 210, 306 A.2d 72) an attorney

was disbarred for knowingly participating in a

transaction which involved a corrupt payment to

satisfy an illegal demand by a public official. How-

ever, unlike the situation here, the attorney was not

in any sense a covictim, played a very active part

in the corrupt transaction itself and “used the fact

that he was a member of the bar as part of the

mask for the crime by creating the appearance that

a professional fee was involved.” 63 N.J. at 215,

306 A.2d at 75. We agree with the position of re-

spondent’s counsel that Colsey is distinguishable

and that disbarment is not called for.

65 N.J. at 178, 320 A.2d at 475.

Whatever freedom the district court possessed inde-

pendently to draw inferences from the facts and circum-

stances, the court could not, with fealty to consistency,

disregard the interpretation of New Jersey state law by

that state’s highest court and at the same time profess

22a

Appendix A

to “hold the greatest respect for, and give due weight and

consideration to, the views of the [New Jersey] Supreme

Court.”

Locel Rule 7 provides for disciplinary proceedings of

one who has been disbarred or suspended from practice

in any state, Rule 7(2)(b), and one who is “guilty of con-

duct unbecoming a member of the bar of this court”,

Rule 7(2)(d). The rule to show cause entered against

Abrams clearly was limited to Rule 7(2)(d) and 7(2)(b):

It appearing that Arthur Lawrence Abrams may

have been guilty of conduct unbecoming a member

of the Bar of this court; and

It further appearing that the said Arthur Law-

rence Abrams was suspended from the practice of

law by order of the Supreme Court of New Jersey

dated June 3, 1974....

The second paragraph of the rule relates to the state

proceedings in which the only charge considered was the

issuance by Abrams of a check for $20,000. We agree

with the United States Attorney’s assertion that “[a]]l-

though several charges were initially filed against Ab-

rams, only one charge [the $20,000 payment from the

trust fund] is now relevant.” U.S. Attorney’s Brief at

4. Unfortunately, the district court did not limit its con-

sideration to that matter. Instead, it also considered the

$102,000 real estate commission shared by Abrams:

Another factor is that Abrams accepted a share

of a real estate commission paid by the City of

Jersey City on the sale of property on public bid.

He deposited that share in his trust account, ex-

23a

Appendix A

plaining that he considered it to belong to the client,

but no credible explanation was provided for the

making of the payment in the first place. The

commission aspect bears all the indications of a

device to divert public funds into channels from

which they could be repaid secretly to the public

officials. Justification for its payment is not satis-

factorily shown.

385 F. Supp. at 1211. Consideration by the district court

of the “commission aspect” was impermissible for two

reasons.

First, although the presentment of the county Ethics

Committee contained a finding that the sharing of the

brokerage commission violated New Jersey law, this

charge was later “withdrawn by the Committee”, In re

Abrams, supra, 65 N.J. at 176, 320 A.2d at 473, and not

considered by the New Jersey Supreme Court. Ibid. at

177, 320 A.2d at 474. Therefore, insofar as the district

court disciplinary proceeding derived from New Jersey’s

suspension of Abrams, see Local Rule 7(2)(b), page 21

n.7 supra, the district court could not, with propriety,

rely on the “commission aspect” of the original present-

ment.

Second, insofar as the district court disciplinary pro-

ceeding derived from “conduct unbecoming a member of

the bar” separate and apart from that considered in the

New Jersey state court proceedings, the lower court was

obliged to follow its own procedural rules. This it failed

to do. Local Rule 7(4), page 22 n.7 supra, provides that

proceedings relating to “conduct unbecoming a member of

the bar of this court” “shall be presented to the chief

judge, and, if he deems the charges of professional mis-

conduct of sufficient weight, he shall refer them for pre-

24a

Appendix A

liminary investigation and recommendation to a committee

of members of the bar of the court designated by him

or to the United States Attorney.” The reference pro-

cedure was not followed; nor were the procedures gov-

erning reception of any recommendation of the committee

designated or the United States Attorney followed.

It is argued that the failure of the district court to

follow the provisions of Local Rule 7(4) can be justified

because “[t]hese things had been done in the state pro-

ceeding which [Abrams] states were not ‘wanting in due

process in any respect’. He specifically asked the District

Court to decide the matter on the basis of the entire state

record. He did not ask for further investigations which

might have led to the filing of yet additional charges. He

was content to avoid further proceedings then. He cannot

be heard to complain now that their lack prejudiced him

in any way. He was found on the basis of the record

which he declined to supplement to have been guilty of

the precise misconduct originally charged and that record

overwhelmingly supports that charge and amply justifies

his disbarment.” U.S. Attorney’s Brief at 34-35 (our em-

phasis) (appendix reference omitted).

The deficiency in this argument is that that part of the

“precise misconduct originally charged” by the Ethics

Committee relating to the $102,000 commission was with-

drawn by that committee and not considered by the state

court. When Abrams “specifically asked the District Court

to decide the matter on the basis of the entire state

record”, he had the right to assume that the federal court

was only going to consider the $20,000 payment. He had

the right to assume that in the absence of a Local Rule

7(4) procedure, the only matter relevant in the district

court was the charge considered by the state court.

25a

Appendix A

As we have previously observed, the United States

Attomiey in his brief agrees that “[a]lthough several

charges were initially filed against Abrams, only one

charge is now relevant.” If only one charge is relevant

before this court, only one charge should have been rele-

vant before the district court. If the district court chose,

as was its right under 7(2)(d), w go beyond the state

court proceeding and examine other aspects of Abrams’

“conduct unbecoming a member of the bar of this court,”

it was obliged to follow its own rules. The United States

Attorney cannot now, with consistency, argue that

Abrams waived® his right to Local Rule 7(4) procedures

to defend against charges not processed in the state court,

and at the same time agree that only one charge is rele-

vant to these proceedings—that concerning the $20,000

payment.

Accordingly, we hold that the district court erred in

considering the “commission aspect” of Abrams’ conduct.

Finally, the district court considered its “view” that

“Tt]he acquisition of an interest in the client’s enterprise

was obviously a factor that interfered with the exercise

of free judgment on behalf of the client.” 385 F. Supp.

8 The United States Attorney also appears to argue that the

burden of initiating the independent investigation under Local Rule

7(4) was on Abrams. “[Abrams] did not ask for further investi-

gations which might have led to the filing of yet additional char-

ges. He was content to avoid further proceedings then. He can-

not be heard to complain now that their lack prejudiced him in

any way.” U.S. Attorney’s Brief at 35. We disagree. The clear

meaning of Local Rule 7(4) is that the Chief Judge initiates the

reference procedure and that the procedure is mandatory. “(The

Chief Judge] shall refer [the charges of professional misconduct]

for preliminary investigation and recommendation... .” See

page 15 n.7 supra (emphasis added).

26a

Appendix A

at 1211. For the same reasons that it was impermissible

under these circumstances for the district court to con-

sider the “commission aspect”, so also was the district

court precluded from relying on this perceived impro-

priety in assessing a greater sanction than the state

court. Indeed, if anything, the case against the district

court’s considering this aspect of Abrams’ activities is

even stronger, for it was not the subject of any charge

contained in the Ethics Committee presentment.

The district court’s judgment of disbarment will be

reversed.

Rosenn, Circuit Judge, concurring.

I join in the majority opinion. I write to emphasize

what I believe should be the proper standard for federal

disciplinary action based upon a record compiled in state

proceedings.

Each federal court has a broad independent power to

discipline members of its bar, initiate and conduct disci-

plinary proceedings, and impose sanctions predicated

upon the record it has compiled. See Theard v. United

States, 354 U.S. 278, 281 (1957). The independence of a

district court acting in such fashion circumscribes our

authority to review its disciplinary actions. See Ex Parte

Burr, 22 U.S. (9 Wheat.) 529, 530 (1824). When, how-

ever, the disciplinary action is dependent on a record

developed in state proceedings, I believe the district court

should, absent exceptional circumstances, impose the same

sanctions prescribed by the state.

This standard is founded upon the vital principle of

comity, which represents a “belief that the National Gov-

27a

Appendiz A

ernment will fare best if the States and tieir institu-

tions are left free to perform their separate functions in

their separate ways.” Younger v. Harris, 401 U.S. 37, 44

(1971). Comity recognizes that the founding fathers

created a system “in which the National Government,

anxious though it may be to vindicate and protect federal

rights and federal interests, always endeavors to do so in

ways that will not unduly interfere with the legitimate

activities of the States.” Id.

In the United States, admission to the bar and disci-

pline of attorneys is peculiarly within the province of the

states. See In re Dreier, 238 F.2d 68 (3d Cir. 1958). This

is the practice in this circuit. New Jersey, for example,

has a comprehensive and thoughtful system dealing with

every aspect of admission to the bar and any subsequent

discipline. Admission to the bar of the District Court of

New Jersey is derivative, dependent upon admission to

the bar of the Supreme Court of New Jersey. Absent

misconduct in the district court, disciplinary actions also

are derivative in a sense, since they generally are based,

as in the instant matter, on the previously compiled state

record; they occur after the completion by the state of

its proceedings.

The imposition of disbarment by the federal court

when the state has imposed only suspension implicitly at-

tacks the regularity and judgmental values of the state

proceedings, implying that the sanction chosen by the

state courts is inappropriate. This result is bound to

create tensions between the state and federal judiciaries.

A second important policy behind the need to avoid

disparate sanctions by the federal and state courts is the

maintenance of public confidence in our legal system and

in the bar. Disbarment is designed to protect the public.

In re Ruffalo, 390 U.S. 544, 550 (1968). The district

28a

Appendix A

court’s action permits Abrams to practice in the state,

but not the federal, system. Such an anomaly can only

lead to confusion in the minds of the public, which justi-

fiably may speculate why an attorney not qualified to prac-

tice in a federal court has sufficient moral character to

practice in the state court. Unless an exceptional reason

of record justifies such disparate treatment, its effect

will, in my opinion, render a grave disservice to the pub-

lic.

The Supreme Court has recognized the vitality of these

interests in Selling v. Radford, 243 U.S. 46 (1917). The

Court declared that it would afford the utmost respect

in sanctioning members of its bar to the judgment of

state proceedings unless there was a failure of due proc-

ess, an infirmity of proof or some other “grave reason”

not to give effect to the “natural consequences of the

judgment... .” Jd. at 51. Forty years later, in Theard

v. United States, supra, the Court, while reaffirming the

independence of the federal courts in disciplinary mat-

ters, directed a district court imposing sanctions based

upon state proceedings to be guided by the standards of

Selling.

We also have noted the importance of following the

judgment of the state courts in these matters. In re

Dreier, 258 F.2d 68 (3d Cir. 1958). The District Court

for the Middle District of Pennsylvania had denied

Dreier’s application for admission to its bar on the ground

that Dreier lacked good moral character due to events

for which he had been suspended from the bar of the

Luzerne County Court of Common Pleas. Prior to his

application for admission to the federal bar, the county

bar had restored Dreier to membership in good standing.

This court held that the federal district court could not

entei an order amounting to permanent disbarment based

29a

Appendiaz A

upon events for which Dreier had paid the penalty im-

posed by, and had been restored to membership in good

standing of, the bar which knew him best.

Finally, the teachings of Selling and Theard have not

been lost upon the district courts throughout the country.

Sixty-nine district courts responded to a survey asking

whether they ever had deviated from disciplinary actions

taken by the courts of their states. One district court,

the Southern District of New York, responded that they

had a rule permitting disparate discipline for the reasons

announced in Selling or if “the misconduct established

has been held by this Court to warrant substantially dif-

ferent discipline.” Rule 5(d). Only three other district

courts cited instances of deviating from the action of their

state courts. One such instance was Jn re Dreier, just

discussed. In another, the disbarment by the district

court was reversed for lack of due process. In re Jones,

506 F.2d 527 (8th Cir. 1974). In the third instance, the

district court had appointed a special master who had

conducted a three-day hearing and received much evidence

not heard by the Alaskan Supreme Court. Jn re Mackay,

298 F. Supp. 170 (D. Alaska 1969).

In sum, I believe the district court should have followed

the standards of Selling and Theard, which impliedly

were recognized by this court in Dreier, and which are

acknowledged in practice at least by the overwhelming

majority of the district courts throughout the country.

There is no contention that the state proceedings lacked

due process, and the parties stipulated to the relevant

facts. The district court did not adequately explicate,

and I do not perceive, any grave reasons for choosing

more severe punishment than imposed by the Supreme

Court of New Jersey.

Since the majority opinion, as I read it, does not pre-

clude the district court from imposing the sanctions de-

creed by the state court, I join in the reversal.

30a

Appendix A

Apams, Circuit Judge, Concurring and Dissenting

Since no particularized supplemental allegations were

prepared for the district court, the basis for the charge

in that court reasonably appeared to be that Arthur L.

Abrams had issued a check for $20,000, to be used to bribe

a municipal official. It was on this specific charge that

the New Jersey Supreme Court had entered its judgment

to suspend Abrams from the practice of law for one year.’

And this charge necessarily must have been the one that

Abrams and his counsel had in mind when they elected to

rest on the record that had been before the New Jersey

state court.

However, the district court did not confine itself to the

bribery charge. Rather, “view[ing] the matter some-

what differently” from the New Jersey Supreme Court,

the district court proceeded to consider two additional

issues: Abrams’ interest in his client’s enterprise, and his

acceptance of a real estate commission. Concerning these,

the district court said:

The acquisition [by Abrams] of an interest in the

client’s enterprise was obviously a factor that inter-

fered with the exercise of free judgment on behalf

of the client.

Another factor is that Abrams accepted a share of

a real estate commission paid by the City of Jersey

City on the sale of property on public bid. He

deposited that share in his trust account, explaining

that he considered it to belong to the client, but no

credible explanation was provided for the making

of the payment in the first place. The commission

1In re Abrams, 65 N.J. 172, 320 A.2d 471 (1974).

3la

Appendix A

aspect bears all the indications of a device to divert

public funds into channels from which they could

be repaid secretly to the public officials. Justifica-

tion for its payment is not satisfactorily shown.?

The state court had taken a substantially diverse attitude

toward these two items. As to the propriety of Abrams’

association with the business venture of his client, the

New Jersey Supreme Court was silent. Respecting the

real estate commission, later deposited in the trust fund,

the state court, on the same record had acknowledged that:

Though the original creation of the trust fund itself

by the respondent was suspect, the record does not

permit a finding that it was specifically designed

for the illegal payment.*

If the district court determined to go beyond the scope

of the charges resolved against Abrams in the state pro-

ceeding, namely, the illegal $20,000 payment, and to con-

sider other aspects of Abrams’ conduct, it should have so

advised Abrams and given him and his counsel the oppor-

tunity to introduce evidence relating to such conduct. Due

process would seem to require as much.* No justification

?In re Abrams, 385 F. Supp. 1210, 1211 (D. N.J. 1974) (cita-

tion omitted).

$320 A.2d at 475.

*The parties have not disputed that a disbarment proceeding

must satisfy procedural due process requirements. Thus, the only

issue confronting the Court in this regard is the nature of the

procedure that must be employed. Cf., Goss v. Lopez, 95 S. Ct.

729 (1975). See Note, Specifying the Procedures Required by

Due Process: Toward Limits on the Use of Interest Balancing,

88 Harv. L. Rev. 1510 (1975).

32a

Appendiz A

has been forthcoming that would excuse the failure to

supply Abrams a full description of the charges to be

considered.®

In a case presenting a situation similar to the one here,

In re Ruffalo, the Supreme Court made it clear that in

a disbarment case the charge against the attorney must

be set forth at the outset. It said: “[disbarment] pro-

ceedings [are] of a quasi-criminal nature. The charge

must be known before the proceedings commence.”*

5 It is observed that local rule 7(4) for the United States Dis-

trict Court for the District of New Jersey seems to provide for

a disciplinary procedure which—at least when it extends beyond

the grounds relied upon in a state disciplinary process—calls for

notice of the sort that is lacking here. See majority opinion note

7. But apparently the district court which promulgated the rule

did not so interpret it, at least in the procedural context that de-

veloped here. Rather, the district court’s actions suggest that it

believed its rules were implemented by the procedures followed in

this case.

Because the interpretation of local rules is primarily committed

to the district court that promulgates them, and because their

meaning in the present context appears somewhat uncertain, I

am constrained to reach the question whether constitutional due

process has been satisfied.

*In re Ruffalo, 390 U.S. 544, 551 (1968) (citation omitted).

Randall v. Brigham, 74 U.S. (7 Wall.) 523 (1868).

In three cases subsequent to the Ruffalo decision, the Supreme

Court has reaffirmed that, before proceedings to withdraw a

state-controlled benefit are undertaken, a respondent must be given

both notice of the reasons urged in support of the contemplated

action and an opportunity to respond. Perry v. Sinderman, 408

U.S. 593 (1972) (employment termination) ; Morrissey v. Brewer,

408 U.S. 471 (1972) (parole revocation) ; Goldberg v. Kelly, 397

U.S. 254 (1970) (welfare benefit termination).

33a

Appendix A

Nor is it valid to contend that Abrams waived his right

to know the charges on which the sanction was to be

based, or his right to an opportunity to offer a defense

against any and all such charges. There is nothing in the

district court record which adequately demonstrates that

Abrams was aware that charges respecting his relation-

ship with his client and the $102,000 trust fund were

under consideration.’ Where the duty to apprise Abrams

of the full reach of a disciplinary inquiry was not dis-

charged, it would not seem reasonable to conclude that

Abrams waived his right to present evidence on the two

matters that supported, at least in part, the district

court’s judgment, independent of the state court conclu-

sion.®

I therefore agree with the majority that the judgment

of the district court cannot stand. There is no way to

determine from the record what disciplinary sanction the

district court might have imposed had it confined itself—

as its rule’ seems to indicate and due process requires

* Some intimation of the breadth of the district court inquiry

was discussed at the hearing on June 24, 1974. Transcript 6-10.

*’ The Supreme Court has indicated forcefully that even in a civil

case involving a sophisticated corporate party, the rudiments of

cue process—notice of charges and a fair opportunity to be heard

—are not lightly presumed waived. In Ohio Bell Tel. Co. v.

Public Utility Commission, 301 U.S. 292 (1937), the Supreme

Court held, “We do not presume acquiescence in the loss of funda-

mental rights.” Jd. at 307, quoted in D. H. Overmyer Co. v.

Frick Co., 405 U.S. 174, 186 (1972). The standard for finding

waiver in the case at hand, a “quasi-criminal” proceeding, should

be no less.

® Note 5, supra.

34a

Appendix A

—to the charge adjudicated in the state proceeding and

the record that the parties specifically stipulated.

However, unlike the majority, I do not believe that an

outright reversal is warranted. Rather, I would vacate

the judgment that was entered and remand the case. This

would allow the district court a further opportunity to

reach its judgment regarding the extent of the discipline,

based on the issue derived from the state proceeding, or

else to seek to have additional charges filed as rule 7

seems to authorize, plus the opportunity afforded Abrams

to meet such additional charges.’®

Chief Judge Seitz and Judge Van Dusen join in this

opinion.

Van Dusen, Circwit Judge, concurring and dissenting:

While joining in the separate opinion of Judge Adams

for reversal and remand due to Local Rules 7(2)(d) and

7(4), I find this an exceedingly close case as to whether

affirmance is required on this record, as contended in the

United States Attorney’s brief, and respectfully state

these views not stated in Judge Adams’ opinion. I em-

phasize the majority’s language that “the starting point

10 Whether it is wise or unwise for a federal district court in a

situation like the present one to impose disbarment when the

highest state court has imposed a temporary suspension is, of

course, not before this Court. However, it should be noted that

in this regard the Supreme Court has advised the federal courts

respecting the considerations that govern a federal disciplinary

proceeding that follows a state investigation. heard v. United

States, 354 U.S. 278, 282 (1957); Selling v. Radford, 243 U.S.

46, 51 (1917).

35a

Appendix A

for analysis is the unquestioned principle that the Dis-

trict Court of New Jersey, like all federal courts, has the

power both to prescribe requirements for admission to

practice before that court and to ‘liscipline attorneys who

have been admitted to practice before that court” (p. 10)

and that its discipline “may be at variance with that

taken by the state court system” (p. 16).' See Jn re

Fleck, 419 F.2d 1040 (6th Cir. 1969).

The district court is entitled to regulate its bar, inter

alia, in order to assure proper advocacy to assist it in the

conduct of its judicial functions. In Selling v. Radford,

243 U.S. 46, 50 (1917), the Court emphasized “the condi-

tion of fair private and professional character, without

the possession of which there could be no possible right

to continue to be a member of this Bar.”

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit.

1In the case of Ex parte Burr, 22 U.S. (9 Wheat.) 529, 530

(1824), from which the majority quotes at pages 10 and 11 of

its opinion, the Court stated at page 530:

“If there be a revising tribunal, which possesses controlling

authority, that tribunal will always feel the delicacy of inter-

_ posing its authority, and would do so only in a plain case.

Some doubts are felt in this court respecting the extent of

its authority as to the conduct of the circuit and district

courts towards their officers; but without deciding on this

question, the court is not inclined to interpose, unless it

were in a case where the conduct of the circuit or district

court was irregular, or was flagrantly improper.”

36a

APPENDIX B 7

Judgment of the United States Court of Appeals

UNITED STATES COURT OF APPEALS

For tHE Txirp Circuit

No. 75-1029

—>—

In the Matter of

ArtHur LAwrENCE ABRAMS,

an Attorney-at-Law,

Artuur LAWRENCE ABRAMS,

Appellant

(D.C. Mise. No. 74-53)

—

On APPEAL FROM THE Unirep States District Court

FORK THE District or NEw JERSEY

Present: Serrz, Chief Judge and Van Dusen, ALDISERT,

Apams, Rosenn, Hunter and Wes, Circuit Judges

JUDGMENT

This cause came on to be heard on the record from the

United States District Court for the District of New

Jersey and was argued by counsel.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said

District Court, entered December 12, 1974, be, and the

same is hereby reversed. Costs taxed against appellee.

ATTEST:

Tuomas F. Quinn

Clerk

June 30, 1975

37a

APPENDIX C

Amended Judgment of the United States Court of Appeals

UNITED STATES COURT OF APPEALS

For tHe Txurirp Circuir

No. 75-1029

In the Matter of

ArtHur Lawrence ABRAMS

an Attorney-at-Law,

ArTHuR Lawrence ABRAMS,

Appellant

(D.C. Mise. No. 74-53)

—e

On APPEAL FROM THE Unitep Srates District Court

FoR THE District or NEw JERSEY

Present: Serrz, Chief Judge and Van Dusen, ALDISERT,

ApaMs, Rosenn, Hunter, and Weis, Circuit Judges

AMENDED JUDGMENT

This cause came on to be heard on the record from the

United States District Court for the District of New

Jersey and was argued by counsel.

38a

Appendia C

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said

District Court, entered December 12, 1974, be, and the

same is hereby reversed. Each party to bear its own

costs.

ATTEST:

Tomas F.. Quinn

Clerk

July 14, 1975

39a

APPENDIX D

Opinion and Order of the United States District Court

UNITED STATES DISTRICT COURT

District oF New JERSEY

Mise. No. 74-53

—>

In the matter of

ArTHUR LAawRENCE ABRAMS,

an Attorney at Law

——~@-

OPINION AND ORDER

‘Filed—December 10, 1974)

By orders dated June 3 and June 19, 1974, the Snu-

preme Court of New Jersey suspended Abrams from the

practice of law for 1 year, effective July 1, 1974, and

until the further order of the Court. These disciplinary

proceedings on order to show cause under Local Rule 7

followed.

The facts and circumstances are adequately detailed in

the opinion of the Supreme Court, 65 N.J. 172 (1974)

and need not be repeated here. It was recognized there

that Abrams’ participation in activities leading to the

payment of a bribe to a public official was improper. It

was also indicated that his interest in salvaging his in-

vestment share of the client’s enterprise, to protect which

the bribe was paid, and the existence of extortionate ele-

40a

Appendia D

ments in the demands of the public officials, were mitigat-

ing factors to be given effect in selecting the degree of

disciplinary action to be taken.

We view the matter somewhat differently. The acqui-

sition of an interest in the client’s enterprise was obvi-

ously a factor that interfered with the exercise of free

judgment on behalf of the client. Code of Professtonal

Responsibility, Canon 5, EC 5-1, 5-2 and 5-3; DR 5-103

and 5-104.

Another factor is that Abrams accepted a share of a

real estate commission paid by the City of Jersey City

on the sale of property on public bid. He deposited that

share in his trust account, explaining that he considered

it to belong to the client, but no credible explanation was

provided for the making of the payment in the first place.

The commission aspect bears all the indications of a de-

vice to divert public funds into channels from which they

could be repaid secretly to the public officials. Justifica-

tion for its payment is not satisfactorily shown.

We see no basis for distinguishing this case from In re

Colsey, 63 N.J. 210 (1973). Professional misconduct, like

fraud, takes many forms. Variations in detail are not

significant when the underlying character is the same. A

lawyer who countenances and assists client misconduct

for the payment of an extortionate bribe countenances

two offenses: one, the extortion and two, the bribe. His

minimum duty in such circumstances is to advise the

client against it in the strongest terms, and if the client

persists, to disassociate himself from the matter promptly

and completely. And, since a communication in the course

of legal service sought in aid of the commission of a

crime or fraud is not privileged, N.J. Ev. Rule 26 (2)

(a), he may be under a further duty to report the mat-

ter to proper authorities.

4la

Appendiz D

Abrams is a member of the bar of this Court by deriva-

tive admission on motion, by virtue of his status as an

attorney licensed to practice by the Supreme Court of

New Jersey. Local Rule 4. Ordinarily, a suspension, dis-

barment or censure by the Supreme Court of New Jer-

sey will result in corresponding action here. Local Rule

7. But this accommodation does not necessarily suffice

to discharge the independent obligation of this Court to

take appropriate action on its own rational analysis and

determination, although in doing so it will hold the great-

est respect for, and give due weight and consideration to

the views of the Supreme Court. Jn re Ruffalo, 390 U.S.

— In re Wilkes, 494 F.2d 472, at 474-5 (C.A. 5,

Then, too, there will be cases in which this Court will

act first. If an attorney be convicted of a crime in this

Court, or commits an act of professional misconduct in

connection with a matter before this Court, a disciplin-

ary proceeding may begin here and be concluded here, or

may take the form of a temporary suspension here pend-

ing disciplinary proceedings here or before the Supreme

Court. In either case, this Court would duly inform the

Supreme Court of the pendency of the matter, and of the

outcome, so that it might proceed to carry out its func-

tions under N.J. Const. 1947, Art. 6, §2, par. 3. The

same would be true in the case of attorneys disciplined

here who are admitted to the practice of law in other

jurisdictions.

Differences in disciplinary action as between this Court

and the Supreme Court could give rise to practical diffi-

culties for the disciplined lawyer. If the Supreme Court’s

discipline be more severe than ours, it will likely control

the practical impact because the ability to practice before

this court would have little meaning without the ability

42a

Appendix D

to practice law in New Jersey. If this Court’s discipline

be more severe, the practical impact will be lessened con-

siderably by the lawyer’s ability to practice law in New

Jersey although not in this Court.

Since the instances in which the two Courts will have

different views are not likely to be frequent, and since

the practical impact of the Supreme Court’s view will

necessarily predominate, we do not think the risks are

sufficiently great to permit the withholding of different

views when they are held by this Court.

OrDER

For the reasons stated, it is hereby Orperep that the

name of Arthur Lawrence Abrams be, and the same here-

by is, stricken from the roll of attorneys permitted to

practice before this Court, and until the further order of

the Court.

Datep: 12-10-74 :

s/ Lawrence A. Wurtz, Chief Judge

s/ James A. Cootanan, Senior Judge

s/ Georce H. Bartow, U.S.D.J.

s/ Freperick B. Lacey, U.S.D.J.

s/ Vrxcent P. Bronno, U.S.D.J.

s/ Henrpert J. Srern, U.S.D.J.

s/ H. Curtis Meanor, U.S.D.J.

Original to Clerk

43a

Appendia D

Conen, Senior Judge, with whom Judge Fisuer joins,

dissenting:

It is well settled that the federal judiciary may review

the results of a state court proceeding involving the dis-

cipline of an attorney. Both the scope of such a review,

and the weight to be accorded a state court’s disposition

are set forth in Selling v. Radford, 243 U.S. 46 (1917).

A case of more recent vintage which addressed similar

questions, and affirmed the vitility of Selling was Theard

v. Umited States, 354 U.S. 278 (1955). While I do not

question the power of this court to impose a sanction dif-

ferent from that imposed by the Supreme Court of New

Jersey, I question the advisability of such a course of

action. Furthermore, although this court may act inde-

pendently of the state court determination, such inde-

pendence is narrowly confined by the language of Selling

itself. The Supreme Court took pains to mark the limited

scope of federal review:

“. .. [W]e should recognize the condition created

by the judgment of the state court unless, from

an intrinsic consideration of the state record, one

or all of the following conditions should appear:

1. That the state procedure from want of notice

or opportunity to be heard was wanting in due proc-

ess; 2, that there was such an infirmity of proof

as to facts found to have established the want of

fair private and professional character as to give

rise to a clear conviction on our part that we

could not consistently with our duty accept as final

the conclusion on that subject; or 3, that some

other grave reason existed which should convince

us that to allow the natural consequences of the

judgment to have their effect would conflict with

the duty which rests upon us not to disbar except

44a

Appendiz D

upon the conviction that, under the principles of

right and justice, we were constrained so to do.”

243 U.S. at 51. (emphasis supplied)

No question is presented here as to whether the hear-

ing accorded the attorney by the state court was consis-

tent with due process, nor is there any dispute regarding

the facts. What, then, is the “grave reason” for this

court to pronounce a harsher judgment than that imposed

by the state judiciary? I must confess that I cannot dis-

cern in the majority opinion the answer to this crucial

question. The majority cites In re Ruffalo, 390 U.S. 544

(1968) and In re Wilkes, 494 F.2d 472 (5th Cir. 1974)

in support of its position that the federal judiciary must

independently act in disciplinary matters. These cases,

however, simply affirm the principles of due process which

must be followed in the conduct of such disciplinary pro-

ceedings. Neither these cases, nor the instant case, deal

with a “grave reason,” which would justify a different

disposition by this court.

Notwithstanding the absence of a response to the cru-

cial question of “grave reason,” I dissent as a matter of

policy. Assuming that the purpose of the harsh sanction

advocated by the majority is to deter future wrongdoers,

deterrence is certainly not advanced by the possibility

that Abrams may, at some future time, be permitted to

practice in the state courts. While there may be cases

which might justify disparate treatment, I am not con-

vinced that this is such a case.

The majority takes issue with the Supreme Court of

New Jersey for distinguishing this case from Jn re Colsey,

63 N.J. 210, A.2d (1973), where the attorney

was disbarred. Placing aside for the moment the ques-

tion of whether this court should engage in a contest

45a

Appendia D

with the State Supreme Court over the merits of the dis-

tinction, this case is distinguishable from Colsey in at

least three ways: (1) in this case, the disciplined attorney

himself, as a part owner of the business, was a victim

of the extortion; (2) here, the disciplined attorney did

not retain part of the “pay-off” as a “fee”; and finally,

(3) unlike Colsey there was no deliberate attempt in this

case to perpetrate a tax fraud.

I do not find the state court’s distinction to be without

basis. The majority’s position, simply stated, is:

“Professional misconduct, like fraud, takes many

forms. Variations in detail are not significant

when the underlying character is the same.” Ante

at 2.

This is an oversimplification of the facts, and of the state

court opinion.

I do not quarrel with the sentiments expressed by the

Court with regard to unethical conduct; in fact, I whole-

heartedly endorse such a standard for all attorneys in all

states. In my opinion, however, such sentiments are

largely irrelevant to the true import and impact of the

majority opinion.

It is quite understandable that the Court should be

reasonably exercised and concerned with the improprieties

of members of the Bar, especially in light of the increased

awareness of the public to such activities. In this Water-

gate area of “dirty tricks, laundered money,” perjury, ob-

struction of justice, corruption and related matters, one

must not lose sight of the more mundane aspects of the

legal and judicial process, as it pertains to the interrela-

tionship of the federal and state judiciary. In its effort

to weed out unethical practices, wherever and whenever

46a

Appendiz D

they oceur, the Court may have lost sight of the past

practice in this, and other districts, regarding disciplinary

proceedings.

For the first time in the history of the District of New

Jersey, or for that matter in the history of any district

within the Third Circuit, our Court has refused to be

bound by a state court determination in a disciplinary

matter. No explanation is given for this sharp divergence

from past practice other than the independence of the

federal judiciary. Certainly the independence of the fed-

eral judiciary cannot be the “grave reason” required by

Selling. Although the majority opinion recognizes the

derivative nature of admission to the federal bar, it

glosses over the remainder of the State machinery with

regard to bar admission and attorney discipline. Some

elucidation would be appropriate in these circumstances.

Fully forty-five of the New Jersey Court rules, with

myriad subdivisions, deal with nearly every imaginable

aspect of qualifications for admission to the bar, actual

admission, and any subsequent discipline of one who is

admitted. There is in existence in New Jersey a compre-

hensive and thoughtful scheme for dealing with the cum-

bersome and ofttimes complex questions of who should

and who should not be authorized to engage in the prac-

tice of law.

Admission to practice in our courts is derivative. It is

the state who conducts bar examinations. It is the state

who maintains committees on character and fitness and

ethics. The federal courts have no such machinery and

rely exclusively on the state system in determining who

shall be admitted to its bar. To make an independent

evaluation of applicants to the federal bar would be ex-

pensive, cumbersome and unnecessary. Likewise, disci-

47a

Appendiz D

plinary proceedings in our courts ofttimes follow upon the

coattails of extensive records and hearings in the state

courts and their duly authorized committees. Therefore,

in a sense, our disciplinary proceedings are also deriva-

tive because based in part on a previously compiled state

record.

With this structural background in mind, it is difficult

to see the basis for this sudden surge of independence on

the part of our Court. Disparity does little to bolster

the public respect for the judiciary and does less for

federal-state cooperation.

In this regard let us examine the possibly anomalous

results of this newly found independence. ‘An attorney

suspended from practice for one year by the state sys-

tem, but disbarred by the federal system, would there-

after be permitted to practice in the state courts but not

in the federal courts. Is this person a practicing attor-

ney or not? Are the ethical sensitivities of the federal

bench so much greater than their state counterparts?

What is the public to think of such a situation, especially

with its current disenchantment with the legal profession?

What of comity? After long years of joint efforts to

ease the natural tensions between two parallel judicial

systems operating within the same state, are we to totally

disregard all notions of coordination? There are 2!ready

enough areas of potential friction between the state and

federal judiciaries. See Helfant v. Kugler, 500 F.2d

1188 (3rd Cir. 1974) cert. granted, U.S. , 43 U.S.

L.W. 3291 (Nov. 19, 1974). On August 16, 1974 the

Conference of Chief Justices unanimously passed a reso-

lution urging greater cooperation and communication be-

tween state and federal courts. (See Appendix A). I

am reluctant to carve out yet another area of possible

48a

Appendix D

abrasiveness, particularly where the facts do not require

such action. The majority believes, however, that an

independent disciplinary proceeding is necessary. While

Selling v. Radford, supra, permits such an independent

examination, it does so within narrow limits. I believe

that my colleagues have transcended those limits. I be-

lieve that under certain circumstances, a sanction other

than the one imposed by the state court might, perhaps,

be appropriate. I can discover no “grave reason” for

departing from the judgment of the Supreme Court of

New Jersey in this case. Such a course of action flies in

the face of comity, and should be undertaken with great

reluctance. As has been pointed out in another context,

“comity” is

“a proper respect for state functions, a recognition

of the fact that the entire country is made up of

a union of separate siate governments, and a con-

tinuance of the belief that the National Govern-

ment will fare best if the states and their institu-

tions are left free to perform their separate func-

tions in their separate ways.” Younger v. Harris,

401 U.S. 37, 44 (1971).

With all due respect, I do not believe that the majority

has shown the proper regard for what has traditionally

been a state function. I conceive the majority opinion to

be analytically unsound, and an unwise disservice to the

concept of federal-state cooperation.

It would seem to be incumbent upon our court to en-

gage in extensive discussions and negotiations with the

New Jersey Supreme Court in order that some orderly

procedure might be established to integrate and accom-

modate the state and federal disciplinary systems. The

Supreine Court of New Jersey has already indicated its

49a

Appendia D

willingness to conduct such joint efforts. A system should

be devised whereby the federal bench can review the evi-

dence, make recommendations, submit its views, and gen-

erally participate in any judicial disciplinary hearings

on the state level. But the New Jersey Supreme Court

should render the decision and the federal bench, as a

matter of policy, should be guided thereby. This is the

only method which would recognize the derivative nature

of practice in the federal courts.

Of course, our court should be more concerned, than

the State courts, where a disciplinary proceeding is based

upon misconduct of a federal official, or upon conviction

of a federal offense, or upon some transgression com-

mitted during an appearance in a federal court. In in-

stances such as these, where the federal system gives rise

to the disciplinary proceedings, the state court has dis-

played no reluctance in taking appropriate action with

dispatch. Heretofore, the New Jersey Supreme Court has

exercised a diligent watch over just these sorts of trans-

gressions. See e.g., the most recent case of In the Matter

of Louis M. Turco, —— N.J. . A. 2d —— (D-11,

filed Nov. 6, 1974), wherein an attorney who had pre-

viously pleaded guilty to tax fraud in the federal court

was subsequently disbarred from practice in the state

courts. This is but one example of the good faith effort

on the part of the State Supreme Court to accommodate

the federal system. Furthermore, it serves as another

example of the cooperation which has heretofore existed

and which is now threatened.

Finally, the majority opinion contends that disparity

between the state and federal systems will be infrequent.

It cannot be said with certainty that differences in opin-

ion will be infrequent. We have one example before us

50a

Appendix D

—how many others are lurking in the “corners of our

profession?” Even one difference of opinion requires some

joint federal-state effort at resolution. The time has come

to openly confer with the members of the New Jersey

Supreme Court in the hopes of arriving at an expeditious

solution to the problem which now threatens to rend

asunder the fragile fabric of cooperation between the

two systems. For the present, however, I strenuously

resist any effort on the Court’s part to seize this particular

opportunity to impose a sanction different from that of

the New Jersey Supreme Court.

As Chief Justice Hughes has recently pointed out in a

letter to Chief Judge Whipple of our court: “After all,

we act under like constitutional obligations, have equally

high respect for our profession and serve the same public

in the administration of justice.”

For the above reasons, I would direct, as did the State

Supreme Court, that Arthur Lawrence Abrams be sus-

pended from the practice of law for one year, and until the

further order of this Court.

MrrcHe.t H. Conen, Senior JUDGE

Unrrep States Districr Court

Crarkson S. Fisner, Junce

Untrep States Districr Court

5la

Appendix D

AppEeNnDIx “A”

RESOLUTION

Vill

Wuereas, the Conference of Chief Justices in 1971 en-

dorsed the efforts of the Chief Justice of the United

States to improve the channels of communications be-

tween state and federal courts and to eliminate abrasive-

ness in state-federal judicial relationships; and

WHEREAS, much improvement between state and fed-

eral judicial relations has resulted from an interchange

of ideas and a discussion of mutual problems between

state and federal judges through State-Federal Judicial

Councils; and

Wueneas, in recent months there have been in a few

federal district courts and circuit courts of appeals cer-

tain decisions which threaten to negate the effectiveness

of efforts to improve state and federal judicial relation-

ships in that these federal courts, below the United States

Supreme Court level, unreasonably have invaded areas

which historically and traditionally are recognized to be

within the exclusive jurisdiction of state courts, as for

example the matter of state bar admissions and the in-

ternal administration of state court systems;

Now, THEREFOKE, BE IT RESOLVED by the Conference of

Chief Justices duly assembled in Plenary Session on

August 16, 1974, as follows:

1. That each state judicial system is urged to con-

tinue its efforts to bring about a cooperative and

cordial relationship between state and federal judi-

cial systems through open communication and with

the interchange of ideas and mutual recognition of

52a

Appendix D

the responsibilities of each system through State-

Federal Judicial Councils and other means.

. That the “exhaustion of state remedies” doctrine

must be strictly adhered to in areas which have

historically and traditionally been within the exclu-

sive jurisdiction of state courts, including state

bar admissions and internal administration of state

court systems and in the joint jurisdiction of the

federal and state authorities; otherwise, the marked

improvement in state-federal judicial relationships

which has occurred in recent months will be sub-

stantially eroded.

. That various organizations interested in proper

state-federal judicial relationships, including State-

Federal Judicial Councils, the Federal Judicial

Center, the Administrative Office of United States

Courts, the National Conference of Federal Trial

Judges, the Judicial Conferences of United States

Courts, and the State-Federal Judicial Relations

Committee of the American Bar Association, be

called upon to bring to the attention of their judi-

cial members the importance of maintaining proper

and cooperative relationship between state and fed-

eral judiciaries in the areas above delineated.

. That Congress is called upon to enact legislation

requiring the exhaustion of state judicial remedies

before federal courts may entertain jurisdiction of

matters which have been traditionally and histori-

eally within the exclusive jurisdiction of state court

systems such as bar admissions and the internal

administration of state judicial systems.

53a

APPENDIX E

Per Curiam Opinion of the Supreme Court of New Jersey

Supreme Court or New Jersey

No. D-1—September Term 1973

—+

In the Matter of

ArTHurR LawreENcE ABRAMS,

an Attorney at Law.

——<>

Argued February 19, 1974. Decided June 4, 1974

Mr. Frederick C. Vonhof for the order.

Mr. Clive S. Cummis argued the cause for the respond-

ent (Messrs. Sills, Beck, Cummis, Radin and Tisch-

man, attorneys; Mr. Jeffrey Barton Cahn and Mr.

Jerald D. Baranoff, on the brief).

Per CuriAM:

The Essex County Ethics Committee charged the re-

spondent with ethical violations in a presentment dated

May 16, 1973, later modified in a supplemental report

dated December 13, 1973.

In 1967 the respondent became aware, through C. B.

Snyder, a business associate and real estate broker, of

the impending sale of Jersey City waterfront property

which was suitable for transformation into a port facility.

He communicated with his client Ezra Sensibar, Presi-

d4a

Appendix E

dent of Construction Aggregates Corporation, which spe-

cializes in the building and operation of port facilities.

Thereafter the ESCA Corporation was formed to bid on

the Jersey City property. The respective ownership in-

terests in ESCA were Construction Aggregates Corpo-

ration 60%, Snyder 20% and respondent 20%. An auction

of the property was held in Jersey City on August 1, 1967

and ESCA was the successful bidder for the sum of

$2,040,000. The property was isolated from city services

and it was necessary that water and sewer facilities as

well as access roads be provided. A meeting was ar-

ranged with John V. Kenny, the then Hudson County

political leader, who assured Sensibar that there would

be wholehearted official cooperation in the development

of the port facility proposed by ESCA.

Towards the close of 1968 Jersey City adopted resolu-

tions letting contracts for the construction of roads and

the laying of sewer and water pipes to the property ac-

quired by ESCA. At about the same time, a resolution

was adopted authorizing payment of a 5% brokerage com-

mission to C. B. Snyder Realty, Inc. The commission

amounted to $102,000 and half, namely, $51,000, was paid

to the respondent pursuant to an earlier arrangement

between Snyder and the respondent. The respondent tes-

tified that although the $51,000 was his to do with as he

pleased, he considered that he should ethically turn it

over to ESCA. He did that by placing it in an “Arthur

Lawrence Abrams Trust Account” in the National New-

ark and Essex Bank; at one point he described the

$51,000 in the trust account as “an emergency fund.”

As time went on and as the financial commitments of

ESCA (renamed Port Jersey Corporation) and those

associated with it became deeper and deeper, the lack of

cooperation by the Jersey City officials became evident.

55a

Appendiz E

Despite the resolutions letting contracts for the construc-

tion of roads and the laying of sewer and water pipes,

work had not been commenced and permits had not been

issued when the respondent and Snyder were advised that

a so-called “political contribution” was expected by the

Jersey City officials. It was suggested that Sensibar

should see Flaherty, then President of the Jersey City

Council. The respondent testified that he called Sensibar

who said “leave it to me.” Sensibar testified that when

he met with Flaherty on April 19, 1969 he knew that the

money that had already been invested “would all go down

the drain if we didn’t somehow make peace and get quick

cooperation from City Hall.” He was disposed to make

“a campaign contribution” of $20,000 in cash “to get

that peace.” He testified further that after his April

19 meeting with Flaherty he conferred with Snyder and

the respondent and “they both said that it was unrealistic

to expect that we could do as much construction work,

as much business as we were doing in Hudson County

without acceding to a shakedown of some kind. They

thought that $20,000 in the circumstances might be nom-

inal and they urged that I should arrange for us to pay

it.” Under date of April 22, 1969 the respondent issued

a check in the sum of $20,000 on his trust account. The

check was made payable to Construction Aggregates Cor-

poration and was stated on its face to be “For Engineer-

ing Services.” The respondent sent the check to Sensibar

who cashed it and who arranged to have the $20,000 in

eash delivered to Flaherty.

The presentment embodied the following findings with

respect to the $20,000 payment: “Respondent character-

izes such payment as extortion and the city officials as

extortioners and what has transpired would so indicate,

however, respondent was a participant and it was through

56a

Appendiz E

the trust funds in his possession that such payment was

made. Respondent was well aware of the reasons under-

lying the making of such payments. Though respondent

owed a duty to his client to act zealously in its behalf

and for its best interests, and to make disbursements

from the trust fund as it directed, nevertheless respond-

ent was under an obligation to act within the bounds of

the law, and obey his own conscience. Direct participa-

tion is denied by respondent, however, he was the con-

duit through whom such payments were made, and to that

extent he did participate in the transaction.”

In October 1970 Mr. MacMillan, Vice President of Port

Jersey, told the respondent that several months earlier

he “had a problem with a building permit” and had paid

out the sum of $1200. He requested a check for the $1200

from the respondent’s trust account but by that time the

funds in the trust account had apparently been trans-

ferred to a certificate of deposit in the National Newark

and Essex Bank in the name of Port Jersey. In response

to MacMillan’s request the respondent arranged in effect

for the bank to issue its check dated October 7, 1970 in

the sum of $1200 payable to Port Jersey. The respond-

ent testified that he did not learn until much later that

the $1200 represented “a pay-off to the building depart-

ment of Jersey City.” In the presentment the Commit-

tee made no specific factual finding in this regard al-

though in its supplemental report, after referring to both

the $20,000 payment and the $1200 payment, it said:

“The total testimony reflects respondent’s knowledge that

the enterprise of which he was one of the principals, as

well as its legal counsel, was compelled to pay $21,200

to certain public officials in aid of the furtherance of the

development of the project.”

57a

Appendiz E

In the presentment the Committee found that $3860

had been paid from the respondent’s trust funds to Frank

Murray, President of the Jersey City Local of the Inter-

national Longshoremen’s Association, in violation of

N.J.S.A. 2A:93-7. However, in the supplemental report

this finding has been withdrawn. The Committee was

satisfied on the basis of further testimony submitted to

it, “that there was no impropriety on the respondent’s

part in participating” in the payment to Murray. The

presentment also contained a finding that the sharing of

the brokerage commission in the manner described was

violative of N.J.S.A. 40:60-26(d)—sinece repealed by L.

1971, c. 199, § 29. However we gather from the supple-

mental report that this finding has also been withdrawn

by the Committee.

The supplemental report reiterated the Committee’s

earlier finding “that the respondent knowingly was a con-

duit in the furtherance of illegal payments to public offi-

cials.” It rejected the respondent’s contention that ke had

no alternative but to comply with Sensibar’s request that

he turn over $20,000 from the trust funds so that it could

be used to satisfy the extortionate demands of the city

officials. It suggested that the respondent might have

instituted legal proceedings to obtain the required official

action, that he might have reported the matter then or

in due time thereafter to the State or other duly consti-

tuted law enforcement officials, or that he might have in

timely fashion withdrawn completely from the matter.

In any event the Committee was firm in its opinion that

the respondent’s ethical duties were not to be measured

simply by the “legality or illegality of his client’s acts” and

that compliance with the client’s demands “for moneys in

the lawyer’s possession under the circumstances of this

ease is not a full discharge of the lawyer’s ethical obli-

gation.”

58a

Appendia E

The Committee stated that it reached its conclusions

“with regret because the record in this case and the per-

sonal knowledge of the members of the Committee estab-

lishes beyond question that respondent’s performance as

a@ man and as a member of the Bar of this State over

the years is a record not only of outstanding accomplish-

ments but also of dedication to the highest ideals of the

legal profession. He interrupted his legal career to serve

in the Armed Forces. When he returned to civilian life

and the practice of law he devoted much of his time and

strength to the service of the members of the Bar and the

students of the law; he has taken an active part in bar

association activities; he is a former chairman of this Cgm-

mittee; he has taught law and he has assisted other teach-

ers of the law in working on drafts of uniform laws.”

We do not consider that either the payment to Murray

or the sharing of the brokerage commission is now be-

fore us. And we are not satisfied that the record is

sufficient to establish participation by the respondent in

the $1200 payment to Jersey City’s building department.

However we consider that the respondent’s knowing par-

ticipation in the $20,000 payment to the Jersey City offi-

cials was firmly established. The purposes surrounding

the original creation of the trust fund is nowhere un-

equivocally acknowledged though the Committee in its

presentment concluded that the “$51,000 retained in re-

spondent’s possession in a trust account that contained

only Port Jersey money was used by Port Jersey to make

irregular payments which would not be reflected upon the

corporate books of Port Jersey.” Be that as it may

there is no basis for doubting that the respondent was

fully aware that the $20,000 check drawn by him from

the trust funds in his possession and turned over by him

to Sensibar was to be cashed and the cash to be used to

59a

Appendiz E

satisfy the illegal extortionate demands of the Jersey

City officials. The respondent also was fully aware that

the $20,000 was not “For Engineering Services” as the

face of the check drawn by him set forth; the fact that

Sensibar’s company may then have been owed moneys

for engineering services was immaterial since the $20,000

was not actually intended or disbursed as payment for

its engineering services.

Little regard need be paid to the “political contribu-

tion” cover by the Jersey City officials. They well knew

that their demand was a corrupt one involving extortion

or bribery or both. See Jn re Colsey, 63 N.J. 210, 211

(1973); cf. N.J.S.A. 2A:105-1; N.J.S.A. 29:93-6; State v.

Begyn, 34 N.J. 35, 45-49 (1961); State v. Seaman, 114

N.J. Super. 19, 31 (App. Div.), certif. denied, 58 N.J. 594

(1971), cert. denied, 404 U.S. 1015, 30 L.Ed.2d 662 (1972).

Similarly all of the parties including the respondent well

knew the illegal nature of the demand and that “the pay-

ment would be corrupt.” Jn re Colsey, supra, 63 N.J. at

211. It may be assumed, as the respondent asserts, that

here there was extortion rather than bribery and that

Port Jersey was the victim rather than the movant. But,

as was pointed out in Colsey, “with respect to the ethics

charge, it would be no defense that respondent’s conduct,

if unethical, related to ‘extortion’ rather than ‘bribery’ ”.

63 N.J. at 211 n. 1.

It is urged before us that Sensibar should be viewed

simply as an unwilling victim who bowed to extortionate

demands and as such is not subject to charges of crimin-

ality or illegality. But we are not here concerned with

the consequences of this conduct to Sensibar. We are

concerned with the respondent, a member of the bar who,

apart from his financial interest in the venture, was act-

ing as legal counsel and was bound by the high ethical

60a

Appendiz E

principles of his profession. Those principles clearly dic-

tated that he play no part whatever in the corrupt $20,000

payment to the public officials of Jersey City. We are

entirely satisfied that the respondent’s participation in

the corrupt payment, to the extent described earlier in

this per curiam, was unethical and calls for some measure

of discipline.

In Colsey (63 N.J. 210) an attorney was disbarred for

knowingly participating in a transaction which involved

a corrupt payment to satisfy an illegal demand by a pub-

lic official. However, unlike the situation here, the attor-

ney was not in any sense a covictim, played a very active

part in the corrupt transaction itself and “used the fact

that he was a member of the bar as part of the mask

for the crime by creating the appearance that a profes-

sional fee was involved.” 63 N.J. at 215. We agree with

the position of respondent’s counsel that Colsey is dis-

tinguishable and that disbarment is not called for. But

we disagree that “discipline which exceeds reprimand”

would be excessive. Reprimand may sometimes be appro-

priate where there has been a lesser ethical violation not

involving corrupt conduct as in In re Kamp, 40 N.J. 588

(1963) and In re Abrams, 56 N.J. 271 (1970). See also

In re A. and B., 44 N.J. 331 (1965). But where, as here,

there has been knowing participation in corrupt conduct

it would not be at all appropriate and would not repre-

sent a responsible discharge of the unfortunately neces-

sary duty placed upon us by Article VI, section 2, para-

graph 3 of our Constitution. Though the original creation

of the trust fund itself by the respondent was suspect,

the record does not permit a finding that it was specifi-

cally designed for the illegal payment. But the record

does permit and indeed compels a finding that the re-

spondent not only permitted its use for the illegal pay-

Gla

Appendia E

ment but knowingly participated in the illegal payment

itself by drawing the check and misstating on its face

that it was for engineering services. Indeed in the light

of Sensibar’s testimony we are led to the finding that the

respondent did not resist the payment but on the con-

trary supported it. Surely it must be recognized that

such conduct was grossly inimical to the ever-present

hope of the elimination of official corruption and the main-

tenance of high standards in the legal profession.

The determination as to the measure of discipline is

difficult and, as we have repeatedly pointed out, “each

case must rest largely upon its own particular circum-

stances.” In re Greenberg, 21 N.J. 213, 225 (1956); In re

Baron, 25 N.J. 445, 449 (1957). We have given due con-

sideration to all of the interests involved and the miti-

gating factors which appear in the record and are set

forth by the Committee in its presentment and supple-

mental report. We have concluded that the respondent’s

professional dereliction warrants suspension from the

practice of law for a period of one year and until further

order; judgment to that effect will be entered.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.