Petition — Kaufman v. Association of the Bar of New York

APR 25 1978

MICHAEL RODAK, JR., CLERK

In THE

Supreme Court of the Anited States

OCTOBER TERM, 1978

ROBERT R, KAUFMAN,

Petitioner,

“against.

ASSOCIATION OF THE BAR OF THE CITY OF

NEW YORK,

Respondent

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

HAROLD J. McLAUGHLIN

Attorney for Petitioner

32 Court Street

Brooklyn, N.Y. 11201

(212) 858-8080

ROBERT R. KAUFMAN

Co-Counsel for Petitioner

51 Chambers Street

New York, N.Y, 10007

(212) BA 7-6606

ed

Dick Bailey Printers, 200 Richmond Ave., Staten Island, N.Y. 10302

Tel.: (212) 447-5358

——

a ——

TABLE OF CONTENTS

Page

Preliminary Statement ... 0.6.6.6 666 c cece eee eees 1

GRMIGR: BIOW vc ccccccvccccccecsncccesesecccece 2

PE 0. 00000000000 0sen ce ctves cdvccoectes 2

Constitutional Provisions .........6.6600eeeeeees 2

MEAIB oo cccccccccscevcccccccscccens 2

Amendment XIV ... 6.66 cece cece eee eens 2

Questions Presented ........ 6666s cee eeeeeeeeeees 3

StatomontiOf' Case.......ccsscsceccsesseeveveees 4

Reasons for Granting the Wait .......... 66 6e cece 8

PPPFTTTTTITITITITITITLL TTT 16

Appendix A—Notice of Order .... 0.66.00 ceeeeees le

Appendix B—Order of the Appellate Division ...... 2a

Appendix C—Order of the United States Court of

Appeals for the Second Circuit ........... pececces da

il

TABLE OF CASES

Page

Brown v. Allen, 344 U.S. 433.0... ccc cc ccccccues 12

Chicago B. & Q R. Co. v. Chicago, 166 U.S. 226.... 8

Gardner v, Broderick, 392 U.S. 273 6... 66.00 cc ues 10

Garrity v. New Jersey, 385 U.S, 493... 666 can 9

Ree GN Bae I ibe Nb diddicckiiévecedsess 12

Griffin v. California, 380 U.S, 609... 66.66 cece cues 9

Lefkowitz v. Cunningham, June 13, 1977 No. 76-260 10

Lefkowitz v. Turley, 414. U.S. 70.0... ccc ccc cee nes 10

Lombard v. Board of Educatipn, 502 F. 2d. 635 .... 13

Lyons v. Goldstein, 290 N.Y.A9D i... cece eee eens 14

Marchant v. Meade Morrison Mfg. Co., 252 N.Y.

SOF ccccnccotcbocverqemeseneeencescoseesnecens 13

Mooney v, Holohan, 294 U.S, 103 ...... 6.666605. 3

People v, Riley, 83 N.Y.S. 20 281 ..... 6.600 eceees 14

People v. Steele, 65 N.Y.S. 24214 ...... 6.60 eceees 14

In Re: Ruffalo, 390 U.S. $44... 6... c cece cece e nes 10

Spevack v, Klein, 385 U.S. SU... cece cece e eee ees 9

Uniformed Sanitation Men v. Sanitation Commis-

sioner, 392 U.S, 280... ccc cece cece eee e eee enenees

U.S. v. Carver, 260 U.S, 482... ccc cere eee eee eenns

STATUTE CITED

10

In the

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1978

ROBERT R. KAUFMAN,

Petitioner,

Vv.

THE ASSOCIATION OF THE BAR OF THE CITY OF

NEW YORK,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

The petitioner prays that a writ of certiorari issue to

review the judgment of the United States Court of Appeals

for the Second Circuit, filed January 27, 1978, which af-

firmed two orders of the United States District Court for

the Southern District of New York, both dated October

19, 1977 and entered October 21, 1977, which dismissed

the complaint of the petitioner.

OPINION BELOW

The opinion of the United States Court of Appeals

for the Second Circuit was filed in that Court on January

27, 1978, and it has not yet been officially reported. A

copy of such opinioi. is printed beginning at page 4aof the

Appendix herein.

The opinion of the District Court of the United States

for the Southern District of New York, (Charles M. Metz-

ner, J.) is dated October 19, 1977, and is printed in the

Joint Appendix at page 115A. (9 copies submitted

herewith).

JURISDICTION

This petition for certiorari to review the judgment of

the United States Court of Appeals for the Second Circuit

filed January 27, 1978, is being timely made within 90 days

of the filing of such judgment.

The jurisdiction of this Court to review such judg-

ment is invoked pursuant to 28 U.S.C. section 1254.

CONSTITUTIONAL PROVISIONS

UNITED STATES CONSTITUTION, AMENDMENT V

No person *** shall be compelled in any criminai case to

be witness against himself ***.

UNITED STATES CONSTITUTION,

AMENDMENT Xiv

Section 1 *** nor shall any State deprive any person of

life, liberty, or property, without due process of law; ***

QUESTIONS PRESENTED

_ Will our Supreme Court lend judicial assistance to

avoid injustice in this case where it is documented by direct

| ae vill this court decide the constitutional issues on

the merits where the State Courts by order have stated they

did not decide the same and where in effect they have

refused to do so? Fate

3. Will this court reaffirm its holding in the Mooney

y. Holohan case 294 U.S. 103 and directly afford this peti-

tioner review where the state court has without cause,

refused to do so. | ;

4. Has procedural due process been denied to petl-

5. Can coercion, letter documented, be allowed to

stand uncorrected?

STATEMENT OF CASE

THE FACTS

Plaintiff was admitted to practice as an attorney and

counsellor at law in the State of New York, on February 2,

1938. Disciplinary Proceedings were instituted on June 12,

1962 by the filing of a petition containing charges of pro-

fessional misconduct. A supplemental petition containing

additional charges was filed, after Mr. Frank, then

counsel to respondent, obtained plaintiff's papers and

-iles pursuant to threats and his coercive letter of August

14, 1964, printed in the Joint Appendix (2nd Cir.) at page

10A, on November 17, 1964.

A hearing was held on the charges before a referee

who was designated by specific order and who was em-

powered to hear only the specific charges, as referred to

him. The referee’s report was dated September 24, 1965

Sustaining six of the nine charges filed against this peti-

tioner. On February 3, 1966 the Appellate Division First

Department confirmed the report of the referee (on mo-

tion) and ordered the petitioner disbarred from practice as

an attorney and counsellor at law in the State of New

York, effective March 3, 1966. After subsequent pro-

ceedings in the Appellate Division and court of appeals in

which petitioner sought unsuccessfully to have recon-

sideration of the disbarment order, petitioner moved on

March 10, 1967 for reopening of the disciplinary pro-

ceedings and suppression of certain evidence on the

ground that he had been coerced into providing the com-

mittee on grievances of respondent with incriminating

evidence in violation of the Fifth Amendment privilege

against self incrimination.

On May 4, 1967, the appellate division denied peti-

tioner’s motion, and on July 7, 1967, the Court of Ap-

peals, denied petitioner’s motion for leave to appeal and

dismissed the appeal taken as of right.

NO HEARING WAS HAD IN ANY COURT other

than the hearings before the referee recited supra.

NO APPEAL WAS HAD IN ANY COURT before

this appeal to the Circuit Court of Appeals, Second Cir-

cuit.

On November 6, 1967 petitioner filed a petition for a

i i the United

i f certiorari in the Supreme Court of t

peeve that the use of incriminating evidence and

age tae

testimony obtained by respondent by coercion in

disciplinary proceedings violated petitioner’s rights under

the Fifth Amendment, as incorporated in the Fourteenth

Amendment with respect to State action. :

This petition was denied on January 15, 1968, but the

eon in the above

7 Court today entered the following order in the a

Fi case (Robert R. Kaufman): No. 795 Oct. o~

1967. The petition for a writ of certiorari Is denied. Mr.

Justice Black and Mr. Justice Douglas are of the opinion

that Certiorari should be gran oe a

: by C.T. Lydano”

ebruary itioner filed a petition in the

Pe ng division 4 Fogpsie oer reconsideration of the

disbarment order of February 3, 1966 on the ground that

his constitutional right to due process of law guaranteed

by the Fourteenth Amendment was violated by the finding

of the referee that he had made certain fraudulent

assignments, although the charges in the disciplinary _

ceedings included no such specification. The finding wi

respect to fraudulent assignments occurred in connection

with Charge No. 8 in the supplemental petition filed by the

respondent herein. The order of reference to the referee

did not submit or refer to him any such charge or

specification. This charge contained allegations that peti-

tioner converted to his own use his client’s share of the

proceeds of the settlement of a claim for personal injuries,

subsequently issued a check for his client’s share of the set-

tlement which was returned because of insufficient funds,

and falsely represented to the counsel for the committee

on grievances that the clients had agreed to lend petitioner

their share of the settlement proceeds.

In connection with his finding with respect to this

charge that petitioner had converted to his own use a share

of the settlement proceeds due his clients, the referee made

the further finding that, in an effort to hold off his clients,

petitioner made assignments to them of obligations owing

to him. The referee devoted several pages of his report to a

discussion of these assignments (Referee’s report, Joint

Appendix submitted herewith, printed at page 102A)

characterized these assignments as worthless (p. 102A

Joint App.) and ‘‘fraudulent”’ (Id. at 105A, and found, as

a result of the assignment that the petitioner engaged in a

course of misconduct and acted in a fraudulent manner (id

at 105A.)

Charge No. 8 in connection with which the referee

made these findings and conclusions contained no allega-

tions with respect to assignments or improper conduct in

relation thereto, and no such charge was ever referred to

him for determination.

The said assignment, which the referee found wor-

thless, and fraudulent, though no charge or specification

existed for the same, was upheld by the Supreme Court

New York County, Frederick Backer, J., in May 1969, to

the extent of $4969.24, (Joint App. pps. 12A, 13A, 14A.)

submnitted herewith.

The opinion of the appellate division on the motion to

confirm the referee’s report upheld his finding with

respect to charge No. 8 without comment on the finding

with respect to fraudulent assignments.

Petitioner’s motion to recall and reconsideration on

the ground that his constitutional rights were violated

when he was found guilty of having made fraudulent

assignments without any notice of such charge and

without such charge having been made or existing was

denied by the appellate division on March 25, 1969. On

May 15, 1969, the Court of Appeals of the State of New

York denied petitioner’s motion for leave to appeal and

dismissed his appeal taken as of right.

Petitioner was interrogated at Respondent’s office by

Mr. Frank, their attorney in 1961 and 1962, where he ap-

peared at their direction.

At no time during Mr. Frank’s interrogation was peti-

tioner represented by counsel nor was petitioner advised of

Petitioner applied to the Appellate Division First

on June 21, 1966 to amend the order of

February 3, 1966, heretofore made, to recite that upon the

matter there were presented and necessarily passed upon

questions under the Constitution of the United States. This

pn ica gue na paaplgar ne Aemnemg tie AG a

(Appendix A, printed at p. la Petitioner applied to

Appellate Division for reconsideration of the February 2,

1966 order on October 8, 1975. This application for a new

trial was based upon newly discovered evidence, namely

Judge Backer’s order, supra, sustaining the very assign-

ment the Referee found fraudulent.

This application was denied by order dated February

19, 1976. Petitioner herein then applied for reconsideration

and reargument of the motion for a new trial, on March 16,

1977 and for a new trial. This application was denied.

Petitioner then moved in the Court of Appeals on May 16,

1977 for an order granting leave to appeal from the order of

the Appellate Division dated March 28, 1977. On July 13,

1977 this application was denied.

Petitioner at all times before the State Courts raised

the Federal Constitutional questions. Petitioner on the

motion in the Appellate Division for a new trial returnable

October 8, 1975S raised the federal constitutional question,

and he did so on the motion for a new trial returnable

March 16, 1977. Both these motions were denied, supra.

Petitioner duly raised the Federal constitutional question

on the motion in the Appellate Division to amend the order

of February 2, 1966, to recite that upon the matter there

were presented and necessarily passed upon questions

under the Constitution of the United States. This motion

was denied by order dated July 7, 1966. The petitioner

recited his federal constitutional deprivations in his

complaint before the United States District Court

(Complaint annexed to Joint Appendix submitted P2A par.

2, P3A par. 3, P4A par. 3, PSA par. 3, P6A par. 4, par. 5,

par. 6, P7A par. 7, par. 9, P9A, par.(3)(a).

REASONS FOR GRANTING THE WRIT

1. The United States District Court Charles M.

Metzner J., found that plaintiff there, Petitioner here,

raised the Federal Constitutional questions, in all the State

Court proceedings. (Pg. 115A Joint Appendix Par. 2). The

State Courts refused to pass on the constitutional (Federal)

questions. (Order of App. Div. July 7, 1966, supra.)

Our courts have held, that the refusal to pass upon the

federal question is just as reviewable as an express decision

on the point. (Stern & Grossman-Supreme Court Practice,

Third Edition P9S lines 10 & 11.)

Since the federal constitutional questions were raised

in the motions for a new trial as well (supra) review should

be granted. Chicago B & Q R. Co. v. Chicago, 166 U.S. 226,

23; -2/ '

_ 2. Respondent's coercive demands, in the course of its

investigation of petitioner's fitness to continue as a member

of the bar, that petitioner furnish documents and in-

formation pertinent to possible disciplinary charges

confronted petitioner with the alternative of providing his

accuser with inculpatory evidence with respect to possible

disbarment or being disbarred for his refusal to do so. Our

adversary system of justice safeguarded by the constitution

prohibits placing a person in such a dilemma. (Resp. letter

of August 14, 1964 Ut. App. p. 10A)).

Punishment cannot be imposed for refusal to furnish

incriminating information in reliance upon the privilege.

Spevack v. Klein 385 U.S. 511; Griffin v. California, 380

U.S. 609. And, if incriminating information is furnished

under threat of punishment for refusal to supply it, the

information so coerced is not available for use as evidence

in a criminal case. Garrity v. New Jersey, 385 U.S. 493.

In Garrity v. New Jersey, 385 U.S. 493 several officers

were questioned in connection with an investigation by the

Attorney General of New Jersey into alleged ticket fixing.

Each officer was warned that anything he said could be

used against him in any criminal proceeding and that his

Fifth Amendment privilege applied but that his refusal to

answer any questions would subject him to removal from

office under New Jersey Rev. Stat. Sections 2A; -17. (Supp.

ie ader the circumstances the officers answered the

questions and some of their answers were then used in

criminal prosecutions of them. The officers were convicted

in the state courts despite the officers objections that the

convictions in large part were based on statements which

had been coerced. In reversing the convictions the Supreme

Court noted:

The choice given petitioners was either to forfeit

their jobs or to incriminate themselves. The option

to lose their jobs or means of a livelihood or pay the

penalty of self-incrimination is the antithesis of

free choice to speak out or remain silent."’ Id. at

497.

The court further noted that “where the choice is

10

between the rock and the whirlpool; duress is

inherent in deciding to waive one or the other. “Id.

at 498, and the court concluded, there was no

voluntary waiver of the privilege.

In Spevack v, Klein 385 U.S. 511, appellant a lawyer,

was called upon to produce records and to testify in a

disciplinary proceeding then pending against him but

refused to do so on the basis that the production of the

records and his testimony might tend to incriminate him.

He was subsequently disbarred.

The Court found that the threat of disbarment with

the concommitant loss of professional standing and

livelihood was coercive and held that the lawyer, like the

policeman in Garrity, could not be forced to choose bet-

ween self incrimination and loss of employment or

professional standing. Id. at 516.

In a concurring opinion Justice Fortas distinguished

between the lawyer and a public employee but held that the

lawyer's rights were to be sustained.

In accord with the above+ holdings by the supreme

Court are Gardner v. Broderick, 392 U.S. 273 (1968);

Uniformed Sanitation men v. Sanitation Commissioner,

392 U.S. 280 (1969) and Lefkowitz v. Turley, 414 U.S.70

(1973),

The pronouncement in the Garrity, Gardner and

Spevack cases was reaffirmed in the Lefkowitz v. Cun-

ningham case decided by this court on June 13, 1977, No.

76-260.

3. Petitioner was denied procedural due process in

violation of the Fourteenth Amendment because the

disbarment order of February 3, 1966, was predicated, in

parts on a finding of misconduct of which petitioner had no

notice. The applicability to disciplinary proceedings of the

due process notice requirement was established by this

Court's decision in Jn Re Ruffalo, 390 U.S. 544,

11

In the Ruffalo case the court noted “the charge

(No. 13) for which petitioner stands disbarred was

not in the original charges made against him” 390

U.S. at 549. “Disbarment, designed to protect the

public, is a punishment or penalty imposed on the

lawyer, * * * He is accordingly entitled to

procedural due process which includes fair notice

of the charge.” 390 U.S. 550. The court observed

further that ‘These are adversary proceedings of a

quasi-criminal nature. The charge must be known

before the proceedings commence.” 390 U.S. at

551. The opinion concluded that ‘This absence of

fair notice as to the reach of the grievance

procedure and the precise nature of the charges

deprived petitioner of procedural due process.”

390 U.S. at 552.

The referee's finding that petitioner made fraudulent

assignments to deceive a client is obviously relevant to his

suitability to continue as a member of the bar. It must be

assumed therefore, that the finding had a bearing on the

determination that disbarment was an appropriate

disciplinary measure. The fact that the finding was not

identified as a separate charge does not weaken its effect.

Nor does the fact that it was considered in connection with

another charge render notice of that charge fair notice with

respect to the fraudulent assignments finding. The charge

that petitioner had appropriated his client’s share of

settlement proceeds, which petitioner claimed had been

loaned to him, was wholly independent of petitioner's

subsequent assignment to the clients of obligations due him

by third parties. The referee's findings with respect to the

former were made independently of his findings with

tespect to the assignments. Similarly, the Appellate

Division in confirming the referee's report made a finding

with respect to the charge involved independently of any

12

reference to the subsequent assignments. The finding with

respect to the subsequent assignments, therefore, can only

be regarded as a prejudicial finding concerning a separate

matter with respect to which petitioner had no notice. As

the Court noted In Re Gault, 387 U.S, 133,

“Notice to comply with due process requirements,

must be given sufficiently in advance of court

proceedings so that reasonable opportunity to

prepare will be afforded, and it must set forth the

alleged misconduct with particularity.”

The Court's decision in Ruffalo establishes that this

notice requirement is applicable to disciplinary

proceedings. Since the Referee found that petitioner had

made fraudulent assignments, although he had been given

no notice of any such charge, the court below should have

granted petitioner's motion for reconsideration and a new

trial. Its failure to apply the decision of this court in

Ruffalo warrants review by this Court.

4. The Constitutional Issues have not been decided by

any Court. There is no res judicata. There has been no

Appellate Review of the determination of the Appellate

Division. The Appellate Division has denied leave to appeal

and so has the Court of Appeals of the State of New York.

No opinions for such denial have been handed down.

This court has repeatedly stated that a denial of

certiorari is not an adjudication on the merits and has no

res judicata effect. Brown v. Allen, 344 U.S. 433, 457-458,

73 S. Ct, 397, (1963); Id. 344 U.S, at 491-492. 73 Sup. Ct.

397 (opinion of Frankfurter, J. concurring) United States v.

Carver, 260 U.S. 482, 490, 43 §. Ct. 181.

Similarly, the New York Court of Appeals has held

that denial of leave to appeal is discretionary and

is not equivalent to a decision on the merits. Matter

13

of Marchant v. Meade-Morrison Mfg. Co. 252 N.Y.

284, reargument denied 253 N.Y. 534 appeal

dismissed, 282 U.S. 808.

Thus neither the state courts nor the Supreme Court have

decided the constitutional issues.

In Lombard v. Board of Education of the City of New

York, 502 F. 2d at 635-636, the Court thus held that neither

the Rooker case nor the doctrine of res judicata would bar

this action.

Where a party has been denied a hearing, as in the

case at bar, the court will not invoke res judicata. (Lombard

v. Board of Education, supra).

The issues in this action as raised by the complaint Ut.

App. P2A-9A) are not the same as the issues that were

decided in the State Court, the parties are not the same.

The Cireuit Court erroneously assumed that the issues were

all passed upon. Since the order of the Appellate Division

of July 7th, 1966 establishes that the constitutional issues

were not passed upon and hence not determined, res

judicata does not apply.

5. In setae of the complaint Ut. App. Pg 6A)

plaintiff there and petitioner here alleges that Counsel to

the Respondent withheld vital information from the referee

and failed to disclose the same to the Appellate Division.

Petitioner claims that such withholding of material

evidence constitutes a denial of due process. This issue was

never determined by any tribunal. The facts are that Mr.

Frank had information long before the disciplinary

hearings that petitioner claimed his client loaned hitn the

funds in question. Mr. Frank failed to disclose this to the

Referee and allowed him to find in his report that Kaufman

blurted interest out at the hearing for the first time, in

effect to cover himself.

Instead of informing the Appellate Division that he

had this information, Mr. Frank allowed this grievous error

14

on the part of the referee to continue and he moved to

confirm the referee's report before the Appellate Division.

In People v. Riley, 83 N.Y.S. 2d 281, brought 12 years

after a defendant was disbarred on a conviction arising out

of the said case the court granted an application of

defendant and vacated the judgment of conviction on the

finding that he was deprived of a fair trial by the District

Attorney withholding evidence.

In People v. Steele, 65 N.Y.S. 2d 214, 222 a judgment

of conviction was reversed where there was a withholding of

material testimony or evidence by the prosecution which

would or might have caused a different result, as in the case

at bar.

In the case of Lyons v. Goldstein, 290 N.Y. 19 the

Court of Appeals held it was within the inherent power of

the court to set aside the conviction where the judgment

was based upon fraud, trickery, deceit, coercion or

misrepresentation.

In Mooney v. Holohan, 294 U.S. 103 this court held:

the safeguards of due process should be present not

only at the inception of*a trial and maintained

throughout the proceedings, but should be carried

along into post trial practice.

This Court has insisted that each state provide some

adequate remedy whereby a post trial procedure is

available to test the legality of a conviction even though it

appears proper on the surface, so that:

‘questions of fundamental justice protected by the

due process clause may be used, to use the lawyer's

language, dehors the record,”

The examination of the case cited in the light of the due

process clause points to the necessity of a remedy in the

state courts whereby errors in fact which do not appear on

the record and hence not subject to review on appeal ¢an be

reviewed without having to invoke a federal jurisdiction.

16

This the state courts did not afford and hence this Federal

action (supra) was commenced. This was never determined,

and hence there is no res judicata.

CONCLUSION

For the foregoing reasons, this petitio n for a writ of

certiorari should be granted.

Respectfully submitted,

HAROLD J. McLAUGHLIN

Attorney for Petitioner

Robert R. Kaufman

Co-Counsel

APPENDIX A

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : FIRST DEPARTMENT

In the Matter

of

ROBERT R. KAUFMAN,

An Attorney.

SIR:

PLEASE TAKE NOTICE that the within is a copy of

an order duly made in this proceeding and duly entered

and filed in the office of the Clerk of the Supreme Court of

the State of New York, Appellate Division, First Depart-

ment, on the 7th day of July, 1966.

Dated: New York, July 11, 1966.

Yours, etc.,

JOHN G. BONOMI

Attorney for The Association

of the Bar of the City

of New York

36 West 44th Street

New York, N.Y. 10036

TO:

Robert R. Kaufman, Petitioner

Appearing Pro Se

51 Chambers Street

New York, N.Y.

APPENDIX B

At a term of the Appellate Division of the Supreme

Court held in and for the First Judicial Department

in the County of New York, on the 7th day of July,

1966.

Present—

Hon. BERNARD BOTEIN,

CHARLES D. BREITEL,

HAROLD L. STEVENS,

SAMUEL W. EAGER,

ARON STEUER,

Justices

In the Matter

of

Robert R. Kauftnan,

An Attorney.

”™

_

The above-named petitioner, Robert R. Kaufman,

having moved this Court for an order staying the operation

and effect of the order of disbarment of this Court, entered

on February 3, 1966, effective March 3, 1966, and for a

further order amending the order heretofore made to recite

that upon the matter there were presented and necessarily

passed upon questions under the Constitution of the

United States; and for other relief,

Now, upon reading and filing the notice of motion,

with proof of due service thereof, and the affidavits of

Robert R. Kaufman, duly sworn to the 17th day of June,

1966 and the 2ist day of June, 1966, in support of said

motion, and the affidavit of Michael Franck, duly sworn to

the 20th day of June, 1966, in opposition thereto, and after

ee tt ltt a

heari i the

ing Mr. Robert R. Kaufman, appearing pro se, for

—-, and Mr. John G. Bonomi, attorney for The

Association of the Bar of the City of New York, opposed,

It is ordered that the said motion be and the same

hereby is denied.

ENTER:

FRANK H. CRABTREE

DEPUTY CLERK.

APPENDIX C

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

At a Stated Term of the United States Court of Ap-

peals, in and for the Second Circuit, held at the United

States Court House, in the City of New York, on the twenty-

seventh day of January, one thousand nine hundred and

seventy-eight.

Present:

HONORABLE IRVING R. KAUFMAN,

Chief Judge.

HONORABLE J. EDWARD LUMBARD

HONORABLE WILLIAM H. MULLIGAN,

Circuit Judges.

ROBERT R. KAUFMAN,

Plaintiff-A ppellant,

-V.

ASSOCIATION OF THE BAR OF THE CITY OF NEW

YORK,

Defendant-Appellee.

Appeal from the United States District Court for the

Southern District of New York.

This cause came on to be heard on the transcript of

record from the United States District Court for the

Southern District of New York, and was argued by ap-

pellant pro se and by counsel for appellee.

ON CONSIDERATION WHEREOPF, it is now hereby

ordered, adjudged, and decreed that the order of said

5a

District Court dismissing appellant’s complaint be and it

hereby is affirmed. In this action brought under 42 U.S.C.

§ 1983, appellant seeks to overturn the order of disbarment

issued against him by the Appellate Division, First

Department, on February 3, 1966. During the nearly twelve

years that have since passed, he pursued numerous appeals

within the New York State courts. The due process and

Fifth Amendment claims now before us were raised during

these appeals, and the United States Supreme Court denied

certiorari on these claims. Under these circumstances, we

follow this Court’s previous decision in Turco v. Monroe

County Bar Ass'n., 554 F 2d 515 (2d Cir.), cert. denied, 46

U.S.L.W. 3216 (Oct. 3, 1977), and find that appellant's

action is barred by the doctrines of res judicata and

collateral estoppel.

s/ Irving R. Kaufman

IRVING R. KAUFMAN, Chief Judge.

s/ J. Edward Lumbard

J. EDWARD LUMBARD

* _ s/ William H. Mulligan

WILLIAM H. MULLIGAN,

Circuit Judges.