Petition — In re Gillis

7~ Supreme Court, U. S \ 1

| FILED

DEC 1 1977

MTA, RODAK, JR. CLERK

IN THE

Supreme Court of the United States

1%-779

IN RE:

PHILIP A. GILLIS,

Petitioner

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RICHARD R. NELSON

Attorney for Petitioner

100 Renaissance Center, Suite 1670

Detroit, Michigan 48243

Telephone: (313) 259-3055

—

Interstate Brief & Record Co., Wurlitzer Bidg., 1509 Broadway, Detrok, Michigan 48226

962-8745 962-8746

TABLE OF CONTENTS

Page

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PE circ baautciedechaesisddadksckenceseusonsewes 2

Question Presented for Reviw ................ ianiadkenes 2-3

Constitutional Provisions and Federal Rules of Appellate

PE EE edn cccpcnddeéude cosandenencedsece 4

OID oan coccdbadvede bonnet évsweecets 5

Reasons for Granting the Writ

I. Petitioner was Entitled to an Evidentiary Hearing 6

II. Petitioner Should Not Be Disciplined as a Direct

Result of Having Prosecuted an Appeal From His

ID So d.nctbenncaccccncteniweeds 8

III. Disbarment Is Too Severe a Sanction ........... 9

ET 6.0 60 ck. cntecdsdnteseedacieeeceevbecnds 11

SING Sct kbeedvobscedeweuesesussseansetbuces 12-13

INDEX OF AUTHORITIES

Cases: Page

Blackledge v Perry, 417 US 21 (1974)................. x

Cincinnati Bar Association v Leroux, 242 NE2d 347

SE 6:0. besheddc dined Keseeceucesvéscenss 10

In Re Fahey, 505 P2d 1369; 63 ALR3d 465............ 9

In Re Lewis, 389 Mich 668; 209 NW2d 203 (1973); and

394 Mich 224; 229 NW2d 316 (1975) ............. 7,10

In Re Ming, 469 F2d 1352 (1972) .............ee008- 6,7

In Re Ruffalo, 390 US 544 (1968) ......... 0. cc cece eens 7

Kentucky State Bar v McAfee, 301 SW2d 899 (Ky

PE nadancesehésedseesundeckseeiencdeseneoieons 10

North Carolina v Pearce, 395 US 711 ................. 3

Turco v Monroe County Bar Association, 554 F2d 515

Gee © UD 6d censksdnecseus cacsunieenedednanencs 7

United States v Hawk, 497 F2d 365 (CA 9 1974)....... 9

United States v McCorkle, 511 F2d 482 (CA 7 1975) ... 9

United States v Pandilidis, 524 F2d 644, 649-50 (CA 6

ED eScbvesudnckdcendusectneqcededceteehectuueas 9

United States v Pohlman, 522 F2d 974 (CA 8 1975) ....

‘oO

Other Authorities:

PE ND vnc dune cksvvcnsencoteceseecsveteses 4

Rule 46, Federal Rules of Appellate Procedure .. 4,5,6,8,11

63 ALR 3rd, Federal Income Tax Conviction as

Involving Moral Turpitude Warranting Disciplinary

Action Against Attorney ..............eeeeeeeeees 9

Supreme Court of the United States

OCTOBER TERM, 1977

PHILIP A. GILLIS,

Petitioner

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PHILIP A. GILLIS prays that a Writ of Certiorari

issue to review the final order of the United States Court

of Appeals for the Sixth Circuit entered June 24, 1977,

striking petitioner's name from the roll of attorneys

admitted to practice before that Court.

tv

OPINION BELOW

The opinion and order of the Court of Appeals is

unreported. It is reproduced as Appendix **A’’, infra.

JURISDICTION

The order sought to be reviewed was entered June 24,

1977. Petitioner was granted leave to file a motion for

rehearing out of time which was denied on September 8,

1977, Appendix **B"’, infra. Jurisdiction is conferred upon

this Court by 28 USC 1254.

QUESTIONS PRESENTED FOR REVIEW

DOES EITHER THE DUE PROCESS CLAUSE OR RULE

46 OF THE FEDERAL RULES OF APPELLATE PROCE-

DURE REQUIRE THAT, BEFORE A COURT OF APPEALS

ENTERS AN ORDER OF DISBARMENT, IT GRANT THE

ATTORNEY A HEARING WHICH HE HAS TIMELY RE-

QUESTED”

DOES THE DUE PROCESS CLAUSE FORBID A COURT

OF APPEALS FROM TAKING DISCIPLINARY ACTION

AGAINST AN ATTORNEY ON THE BASIS OF A CRIMI-

NAL CONVICTION WHICH THE ATTORNEY UNSUC-

CESSFULLY APPEALED TO THAT COURT WHEN THE

COURT DOES NOT TAKE DISCIPLINARY ACTION

AGAINST OTHER ATTORNEYS WHO HAVE BEEN

CONVICTED OF THE SAME OFFENSE BUT WHO HAVE

NOT APPEALED THEIR CONVICTION?

Ill.

SHOULD AN ATTORNEY BE PERMANENTLY DIS-

BARRED UPON HIS CONVICTION OF FAILURE TO FILE

AN INCOME TAX RETURN AT THE TIME REQUIRED

BY LAW IN VIOLATION OF 26 USC 7203?

CONSTITUTIONAL PROVISIONS AND FEDERAL

RULES OF APPELLATE PROCEDURE INVOLVED

The United States Constitution, Amendment V,

provides in part:

No person shall . . . be deprived of life, liberty, or

personal property, without due process of law . . .

Rule 46 of the Federal Rules of Appellate Procedure

provides in part:

(b) Suspension or Disbarment. When it is

shown to the the court that any member of its bar

has been suspended or disbarred from practice in

any other court of record, or has been guilty of

conduct unbecoming a member of the bar of the

court, he will be subject to suspension or

disbarment by the court. The member shall be

afforded an opportunity to show good cause,

within such time as the court shall prescribe, why

he should not be suspended or disbarred. Upon

his response to the rule to show cause, and after

hearing, if requested, or upon expiration of the

time prescribed for a response if no response is

made, the court shall enter an appropriate order.

(c) Disciplinary Power of the Court Over

Attorneys. The court of appeals may, after

reasonable notice and an opportunity to show

cause to the contrary, and after hearing, if

requested, take any appropriate disciplinary action

against any attorney who practices before it for

conduct unbecoming a member of the bar or for

failure to comply with these rules or any rule of

the court.

7

STATEMENT OF THE CASE

Petitioner was convicted of having willfully failed to

file at the time required by law his personal income tax

return for the year 1970. He appealed to the Court of

Appeals for the Sixth Circuit which affirmed his

conviction without opinion on July 8, 1976. 538 F2d 330.

This Court denied certiorari on December 13, 1976 (50 L

Ed 2d 625, No. 76-455).

On January 18, 1977, the Court of Appeals entered an

order reciting the fact of conviction and directing

petitioner to show cause why his name should not be

stricken from the roll of attorneys admitted to practice

before the Court. Petitioner filed a response on February

2, 1977, addressing each of the issues tendered by this

petition, with a request for a hearing before the Court

pursuant to Rule 46 FRAP.

The Court of Appeals denied petitioner a hearing but

did set the case for a fifteen minute oral argument on

June 16, 1977.'

Upon consideration of petitioner’s written response to

the Order to Show Cause, the Court of Appeals ordered

his name stricken from the roll of attorneys admitted to

practice before the Court.

' Under circumstances substantially set out in the Court of

Appeals order, Appendix *‘A’’, infra, petitioner's counsel waived the

15 minutes’ oral argument, but at no time did he waive the hearing

which he requested under Rule 46.

REASONS FOR GRANTING THE WRIT

5.

Petitioner was entitled to an evidentiary hearing.

First of all, it must be made clear that petitioner was

never granted his requested evidentiary hearing. In its

Order of Disbarment, the Court below recited that the

cause was set for hearing on June 16. But this is not so.

This case was set for oral argument only. The notice

from the Court makes this clear.

The above-styled case is set for oral argument

on THURSDAY, JUNE 16, 1977 in the Court

Room of the United States Court of Appeals, U.S.

Post Office and Courthouse, Fifth and Walnut

Streets, Cincinnati, Ohio.

Please report to the Clerk’s Office, Room 516

no later than 8:45 A.M. The Court convenes at

9:00 A.M., Eastern Standard Time.

The Court directs that oral argument be limited

to not more than FIFTEEN (15) minutes on each

[sic} side.

In denying petitioner a hearing, the Court was in

irreconcilable conflict with the Seventh Circuit rule

enunciated in In Re Ming, 469 F2d 1352 (1972). Ming

involved review of a District Court disbarment, and so

Rule 46 FRAP was not implicated. The decision turned

upon the due process clause.

Extenuating circumstances tending toward a

minimization of the penalty very probably would

require a hearing for proper development.

Recently, in a case of parole revocation, the

>

Supreme Court held that the parolee had a right

to a hearing, with minimum due process

requirements, including the opportunity to be

heard in person and to present evidence and to

confront and cross-examine adverse witnesses

[citation]. While in a hearing on a suspension,

based on a finalized conviction of a misdemeanor,

an attorney may not be allowed to reargue the

merits of the conviction, he would seem to have

similar interests to those of the parolee, or a

person being sentenced for a crime, to some

hearing under due process. In such a situation, ‘‘a

chance to respond’’ must be equated to ‘‘the

opportunity to be heard’’ which necessarily

implies a hearing.

In Re Ruffalo, 390 US 544 (1968), turned upon whether

the attorney had been given proper notice, but the Court

did say, at page 550, that an opportunity for explanation

and defense is a requirement of due process. Compare

Turco v Monroe County Bar Association, 554 F2d 515

(CA 2 1977).

See also In Re Lewis, 389 Mich 668; 209 NW2d 203

(1973) and 394 Mich 224; 229 NW2d 316 (1975). In the

first opinion the Court interpreted Michigan’s specific

provision for disciplining an attorney convicted of a

crime. Of this provision, the Court said, 389 Mich at 676:

The convicted attorney must be given an

opportunity to explain in detail those mitigating

factors and circumstances which might cause the

Board not to exercise its discretionary power to

act under this Section. Without such a hearing and

individualized judgment, the discretion of the

Board in this context has no substantial basis

upon which to stand.

8

Due process to one side, the plain language of Rule 46

FRAP requires the Court to grant a hearing upon request.

The hearing surely must include more than an audience

before the Court limited to 15 minutes of oral argument.

Il.

Petitioner should not be disciplined as a direct

result of having prosecuted an appeal from his

criminal conviction.

The disciplinary proceedings against petitioner were

initiated by the Court sua sponte. Unquestionably, the

Court had the right to do this in fulfillment of its

obligation to see that only morally and professionally fit

individuals are allowed to represent the public before the

Court.

However, as petitioner asserted in his response to the

order to show cause, the Court has not acted against

attotneys convicted of the same offense who have

allowed their convictions to rest at the District Court

level. When neither the Court, an independent bar

association, or some other investigative agency does

more than search the records of the appellate court for

evidence of conviction of crime by an attorney, the court

is Offering solid discouragement to a lawyer to challenge

his conviction.

No court may make an appeal so costly to a litigant.

North Carolina v Pearce, 395 US 711; Blackledge v

Perry, 417 US 21 (1974).

Ill.

Disbarment is too severe a sanction.

Petitioner's conviction was a misdemeanor which did

not involve moral turpitude; did not require a proof of an

intent to evade or defeat the tax; and did not require

proof of any evil motive or bad purpose. United States v

Hawk, 497 F2d 365 (CA 9 1974); United States v

Pohlman, 522 F2d 974 (CA 8 1975); United States v

McCorkle, 511 F2d 482 (CA 7 1975); and United States v

Pandilidis , 524 F2d 644, 649-50 (CA 6 1975).

Rule 46 FRAP sets out the standards by which an

attorney's fitness to practice in a Court of Appeals is

measured. There has been little federal litigation

interpreting this rule or predecessor standards of conduct.

See, for example, the annotation at 63 ALR 3rd, Federal

Income Tax Conviction as Involving Moral Turpitude

Warranting Disciplinary Action Against Attorney. Not a

single Federal case is cited. This case could afford the

Court an opportunity to define the obligations of the

Federal courts in disciplinary proceedings.

The precise issue raised here — whether a conviction

for failure to file standing alone is grounds to discipline a

lawyer — was before the California Supreme Court in Jn

Re Fahey, 505 P2d 1369; 63 ALR3d 465. The Court held

that, absent aggravating circumstances, the mere fact of

conviction was not grounds for discipline:

Such a conviction does not establish moral

turpitude on its face. Thus respondent is subject

to discipline only if his moral turpitude is

established by special circumstances that are not

necessarily present whenever the offense is

committed.

505 P 2d at 1373; 63 ALR3d at 471

10

The Court below cited no basis for discipline other

than the fact of conviction. Petitioner was not allowed to

show the truth of the allegations in his return to the

Order to Show Cause that his returns were filed and

taxes paid, including $2,000 to apply against interest and

penalties, before the intelligence agents ever approached

him; that he was truthful in all respects with the

intelligence agents; and that he stipulated to the basic

facts of prosecution so as to avoid burdening the Court

with a lengthy trial.

Rather than burden this Court with extensive citations

of sometimes conflicting State court decisions, we invite

the Court to the decisions of those states comprising the

Sixth Circuit. Kentucky State Bar v McAfee, 301 SW2d

899 (Ky 1957) [Tax Evasion]; and Cincinnati Bar

Association v Leroux, 242 NE2d 347 (Ohio 1968).

[Failure to file].

The Michigan case of Jn Re Lewis, supra, [Failure to

file] was under a unique Michigan rule rather than the

general standards of the American Bar Association. Even

there the discipline imposed was suspension and not

disbarment.

SS

11

RELIEF REQUESTED

For the foregoing reasons, petitioner prays that his

Petition for Certiorari be granted either for plenary

review of the questions tendered or in the alternative to

vacate the order below and remand the case to the Court

of Appeals with directions to afford him the hearing to

which he is entitled under Rule 46 FRAP. A hearing

before a single judge of the Court with the record, at

petitioner's expense, to go to the full Court would be

satisfactory.

Respectfully submitted.

RICHARD R. NELSON

Attorney for Petitioner

100 Renaissance Center, Suite 1670

Detroit, Michigan 48243

Telephone: (313) 259-3055

12

APPENDIX A

ORDER

(United States Court of Appeals

For the Sixth Circuit)

No. 77-9003

(Filed June 24, 1977)

In Re Philip A. Gillis

Before: CELEBREZZE, LIVELY and ENGEL, Circuit

Judges.

On July 8, 1976, this Court affirmed the conviction of

Philip A. Gillis of the Michigan Bar for failure to file an

income tax return for the year 1970 in violation of 26

U.S.C. §7203 (1970). This Court denied a petition for

rehearing on August 17, 1976. The Supreme Court denied

certiorari on December 13, 1976. 45 U.S.L.W. 3428.

On January 18, 1977 this Court filed an order directing

Respondent Mr. Philip A. Gillis of Detroit, Michigan to

show cause why his name should not be stricken from

the roll of attorneys admitted to practice before this

Court. Mr. Gillis’ answer to this show cause order was

filed February 2, 1977, with a request for a hearing before

this Court in compliance with Rule 46c F.R.A.P.

The cause was set for hearing in open court on June

16, 1977.

Respondent informed this Court by letter dated May

23, 1977, that it would be impossible for him to appear

ee

at ee

13

for the reason that he had some two months previously

scheduled a two-week trip to Italy, with a departure date

on June 10, 1977, and requested that oral argument be

rescheduled for a date prior to June 10, or after June 24,

1977. Acting upon his request this Court rescheduled said

hearing for the October 1977 term of the Court,

conditioned upon Respondent's agreeing to a suspension

from practice before this Court until the Court shall

determine the cause.

On June 13, 1977, this Court received a letter dated

June 10, 1977, from Respondent declining to accept the

suspension, with a request that the matter be considered

without oral argument or, in the alternative, that Mr.

John Louisell appear on his behalf. Accordingly, Mr.

Louisell was notified to appear, but requested that the

matter be submitted on Respondent’s Answer to Show

Cause.

Upon consideration of the written response, the Court

concludes that the said Philip A. Gillis has failed to show

good cause why his name should not be stricken from the

roll of attorneys admitted to practice before this Court.

Accordingly, it is ORDERED that the name of Philip

A. Gillis be and hereby is stricken from the roll of

attorneys admitted to practice before this Court.

ENTERED BY ORDER OF THE COURT

/s/ John P. Hehman

Clerk

14

APPENDIX B

ORDER

(United States Court of Appeals

For the Sixth Circuit)

No. 77-9003

(Filed September 8, 1977)

United States of America, Plaintiff-Appellee v. Philip A.

Gillis, Defendant-Appellant.

Before: CELEBREZZE, LIVELY and ENGEL, Circuit

Judges.

Upon consideration of Respondent's motion for

rehearing of order denying leave to file motion for

rehearing out of time and suggestion for rehearing en

banc, said motion for leave to file motion for rehearing

out of time be and hereby is granted.

Appellant further having filed a petition for rehearing

en banc and affirmative vote of a majority of the active

judges of the Court not having been received in favor

thereof, the petition has been referred to the panel which

heard the original appeal.

Upon consideration, the Court being advised, it is

ORDERED that the petition for rehearing be, and it is

hereby denied.

ENTERED BY ORDER OF THE COURT

/s/ John P. Hehman

Clerk