Petition — Olitt v. Association of the Bar of New York
Supreme Court brief1978
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In The
Supreme Court of the United States
October Term, 1978
No. q &-192
J. JEROME OLITT,
Petitioner,
—against—
THE ASSOCIATION OF THE BAR OF THE
CITY OF NEW YORK,
Respendent.
PETITION FOR A WRIT OF CERTIORARI TO THE
APPELLATE DIVISION OF NEW YORK SUPREME COURT
J. JEROME OLITT
Petitioner
25 Broad Street
Penthouse Suite
New York, New York 10004
Telephone: (212) 661-8686
Printinghouse Press — Bar Ass'n Steno Serv. ( Appeals Section) 212-687-0384
TABLE OF CONTENTS
PN CREM she tw ecbececdobodscvdnccccccecece 2
PMc c6ens ob eC eeeeeeseecceconcccccceces 2
i ec ci ckaeeen seesecdcsovecnc 2
Statement of Facts..... “ty Ua -
i i ee i, cc cencesobeesecespeces 7
Opinion of the Appellate Division............. 7
YO I ag occ cece ccccccccccccce 8
BUPOTGENGS GE SEES POCLSIOR. 2 cc ccccccscccceces 20
Conclusion.......+. PE Seeresseeceseeceescecooce 21
APPENDIX A
OPINION OF THE APPELLATE DIVISION....... 22
APPENDIX B
ORDER OF THE APPELLATE DIVISION......... 24
APPENDIX C
BE OE so we ccc ceescececvcecceces 28
(i)
TABLE OF CASES
Alabama Public Service Comm'n.
a eee Ee. Cee, SRR UeEs Ble ccccccce 2
Annonymous v.: Association of the Bar
of the City of New York, 515 F.2d.
427, cert. den. 423 U.S. 863....c.cceceee 5
Armstrong v. Manzo, 380 U.S. 554........ ‘a oe
Barker v. Wingo, 407 U.S. 514.....e.e-0. bee ao a8
Bodie v. Connecticut, 91 S.Ct. 780...... 3, 8, 2l
rn eee ee Ge SIS U8. SiS. cc ccccccse 2
Clay v. Sun O11 Co., 363 U.S. 207....cccccocee Li
England v. Louisiana State Board of
Medical Examiners, 375 U.S.
BLL cccccccccccccccccces 25 9°16, 17, 18, 20
Erdmann v. Stevens, 458 F.2d. 1211.......... 3, 8
Goldberg v. Kelly, 397 U.S. 254......... 3, 8, 21
Government Employees v. Windsor,
i. Moa co. ce Bp Avs 205 Lf, 18, 2
Harrison v. NAACP, 360 U.S. 167, 177... eee. 2
a wes = Wieense®. J97 0.8. 35Gb. cccccccecs as Bu as
Klopher v. North Carolina, 386 U.S.
EEE ee eee eee ee au: ae
Louisiana P. & L. Co. v. Thibodaux,
as ee Ci ades 66 ce ede tees dedcesvcses 2
(ii)
wan me. noe ee eS
Table of Cases
Matter of Ruffalo, 20 L.Ed.2d. 1436........... 21
Mullane v. Central Hanover Bank and
Trust Co., 399 U.S. 306, 70
Dales MEG sha whee cb4h Oh etan choco ae Ms On
NAACP v. Button, 371 U.S. 415.. 2, 11, 12, 13, 16
Palermo v. Warden, Green Haven State
PELOOR., 1309 Fics DObe nieces > & 7, 3, 2%
Railroad Comm'n. v. Pullman Co.,
tee ee Se | ee Washup oneness ao 17
Snaidach v. Family Finance Corporation,
i om a . SS Set area as Be 2a
spevack v. Klein, 386 U.S. Sll.cccccccccccs a on
Townsend v. Sain, 372 U.S. 293, 312-319........ 2
Willcox v. Consolidated Gas Co.,
212 U.S. 19, 40
(iii)
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1978
J. JEROME OLITT,
Petitioner,
--against--
THE ASSOCIATION OF THE BAR OF THE
CITY OF NEW YORK,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE APPELLATE DIVISION OF NEW
YORK SUPREME COURT, FIRST DEPARTMENT
Petitioner prays that a Writ of
Certiorari issue to review the judgment
of the Appellate Division of the
Supreme Court of the State of New York,
First Judicial Department, entered
March 7th, 1978.
OPINION BELOW
The opinion of the Appellate Division of the
Supreme Court of the State of New York, First
Judicial Department (App. A. infra) is reported
at 61 A.D.2d 416.
JURISDICTION
The judgment of the Appellate Division of
the Supreme Court of the State of New York, First
Judicial Department, was entered on March 7th,
1978. The Court of Appeals of the State of New
York denied petitioner's application to appeal
further and dismissed the appeal taken as of right
on May 4th, 1978. The jurisdiction of this Court
is invoked under 28 U.S.C. §1257(3).
QUESTIONS PRESENTED
1. Whether, under the rulings in Burford v.
Sun Oil Co., 319 U.S. 315, Alabama Public Service
Comm'n. v. Southern R. Co., 341 U.S. 341, Willcox
v. Consolidated Gas Co., 212 U.S. 19, 40, Louisi-
ana P. & L. Co. v. Thibodaux, 360 U.S. 25, 29,
Harrison v. NAACP, 360 U.S. 167, 177, Townsend v.
Sain, 372 U.S. 293, 312-319, NAACP v. Button, 371
U.S. 415, Government Employees v. Windsor, 353
U.S. 364 and England v. Louisiana State Board of
Medical Examiners, 375 U.S. 411, a litigant, who
has properly invoked the jurisdiction of the Fed-
eral District Court to consider federal constitu-
tional claims and following the Federal District
Court's abstention reserved in the state court his
right to return to the Federal District Court for
the resolution of his federal constitutional claims,
can be compelled, without his consent and through
no fault of his own, to accept instead a state
court's determination of those claims?
~o
2. Whether, under the ruling in Spevack v.
Klein, 385 U.S. 511, the Fifth Amendment to the
United States Constitution was violated by the
use of petitioner's immunized Grand Jury testi-
mony as part of the case in chief against him
in the state court attorney disciplinary proceed-
ing?
3. Whether, under the ruling in Palermo v.
Warden, Green Haven State Prison, 545 F.2d. 286
(2d. cir. 1976), the "Due Process" clause of the
Fourteenth Amendment to the United States Consti-
tuion was violated, when an Assistant District
Attorney of New York County promised not to refer
peitioner's case to the Association of the Bar of
the City of New York and the breach of this prom-
ise led directly to the commencement of the state
court disciplinary proceeding?
4. Whether, under the ruling in Bodie v.
Connecticut, 91 Sup. Ct. 780, Mullane v. Central
Hanover Bank and Trust Co., 339 U.S. 306, 70 Sup.
Ct. 652, Goldberg v. Kelly, 397 U.S. 254, Snaid-
ach v. Family Finance Corporation, 395 U.S. 337,
In_re: Winship, 397 U.S. 358 and Armstrong v.
Manzo, 380 U.S. 554, the "Due Process" clause of
the Fourteenth Amendment to the United States
Constitution was violated, when the Assistant
District Attorney of New York County's ex-parte
application to turn over petitioner's immunized
Grand Jury minutes to the Association of the Bar
of the City of New York was granted, without the
petitioner being given notice of the application
or an opportunity to be heard in response thereto?
5. Whether, under the rulings in Barker v.
Wingo, 407 U.S. 514, Klopher v. N.C., 386 U.S.
213, Spevack v. Klein, 385 U.S. 511 and Erdmann
v. Stevens, 458 F.2d. at 1211, the speedy trial
mandate of the Sixth Amendment of the United
States Constitution as applied to the states by
-3-
the Fourteenth Amendment was violated by the un-
reasonable and unjustified prosecutorial delay
from 1970 to 1973, which resulted in the death of
two defense witnesses?
STATEMENT OF FACTS
Petitioner originally appeared before a
State Grand Jury in October and November of 1968
and was granted full transactional immunity. Si-
multaneously, petitioner, whose counsel at this
point in time was the same attorney who has rep-
resented him in a prior state court disciplinary
proceeding, received a promise from the assistant
district attorney handling this case that hewould
not initiate or refer the subject matter of peti-
tioner's testimony to the Committee on Grievances
of the Association of the Bar of the City of New
York (hereinafter referred to simply as the
"Grievance Committee"). Accompanying petitioner's
attorney at this time was his law partner.
Thereafter, and on or about December lst,
1969, the Chief Counsel to the Grievance Commit-
tee telephoned the assistant district attorney
handling the case and requested the Grand Jury
testimony of another attorney who had also tes-
tified at the October 1968 Grand Jury. The as-
sistant district attorney volunteered that he had
other Grand Jury testimony of another attorney who
had been granted full transactional immunity and
that he would discuss that with the Chief Counsel
to the Grievance Committee at a later date. There-
after, when the Chief Counsel to the Grievance
Committee observed a newspaper article in January
of 1970, he "put two and two together", recalling
the assistant district attorney's statement, and
opened an attorney's card for the appellant on
January 30th, 1970.
In February of 1971, the assistant district
attorney made an ex-parte application to a state
ee
he ee
Supreme Court justice for an order authorizing the
release of the minutes of various Grand Juries,
inclusive of the Grand Jury at which petitioner
had testified, to the Grievance Committee. No
notice of this application was given to the peti-
tioner nor was he afforded an opportunity to be
heard in opposition thereto. The order was granted |
in February of 1971. .
Thereafter, and in January of 1973, the
Grievance Committee notified petitioner of the
commencement of its investigation and on May 3lst,
1973, it served a charge letter upon him.
At the hearing held before the Grievance
Committee on June 2lst, 1973, its Chief Counsel
presented its charges solely and wholly by resting
its case upon the presentation of the transcript
of petitioner's immunized Grand Jury testimony.
On March 7th, 1974, after the Grievance Com-
mittee recommended that the matter be referred to
the Appellate Division, petitioner requested that
the previous hearing be set aside by reason of the
improper inclusion by the Grievance Committee of
prejudicial material in the charge letter. The
Grievance Committee granted petitioner's request,
and a new hearing was held on May 14th, 1974, which
hearing was adjourned for consideration of peti-
tioner's claim that his immunized testimony before
the Grand Jury was inadmissible in a disciplinary
proceeding.
In June of 1974, petitioner commenced an
action in the Federal District Court for a declar-
atory injunction and injunction against the use of
the Grand Jury testimony in the disciplinary pro-
ceeding. The dismissal of this action, on absten-
tion grounds, was affirmed by the Second Circuit
(515 F.2d. 427) and this Court denied certiorari
(423 U.S. 863).
-5-
Following the denial of certiorari by this
Court in 1975, petitioner returned to the Griev-
ance Committee hearings, where he expressly
reserved his right to litigate his federal consti-~
tutional questions in the Federal District Court
following the resolution of his state issues in
the state proceeding.
In his formal answer to the petition for the
imposition of discipline presented to the Appellate
Division of the Supreme Court of the State of New
York, First Judicial Department, petitioner again
reiterated his express reservation of his right to
litigate his federal constitutional questions in
the Federal District Court following the resolu-
tion of his state issues in the state proceeding.
The Appellate Division appointed a referee
to hear and report and specifically directed the
referee to consider the effect of the district
attorney's promise, if in fact such promise was
made [Palermo v. Warden, Green Haven State Prison,
545 F.2d. 286 (Zd. Cir. 1976)].
The referee's report (App. C. infra) found
petitioner guilty as charged, reported that the
Palermo defense was not available to petitioner,
and recommended leniency in the imposition of
discipline.
The Grievance Committee then moved to con-
firm the referee's report and for the imposition
of discipline. The petitioner cross-moved to
stay the imposition of discipline pending peti-
tioner's return to the Federal District Court for
the resolution of his federal constitutional
issues.
By an order entered March 7th, 1978 (Ap-
rendix B, infra), the Appellate Division of the
Supreme Court of the State of New York, First
-6-
Department, granted the Grievance Committee's mo-
tion to confirm the referee's report and suspended
the petitioner from the practice of law for three
(3) years effective April 7th, 1978. Their opin-
ion is reprinted herein at Appendix A, infra.
On May 4th, 1978, the New York Court of Ap-
peals denied petitioner's application for leave to
appeal there and dismissed petitioner's appeal
taken as of right.
OPINION OF THE REFEREE
The referee's opinion (App. C., infra),
which notes petitioner's express reservation of
his right to litigate his federal constitutional
questions in the Federal District Court, there-
after ignores and makes no mention of the effect
of this reservation of rights; held that the
Palermo [Palermo v. Warden, Green Haven State
Prison, 545 F.2d. 286 (2d. Cir., 1976)] defense is
unavailable to petitioner; ignored and made no
mention of the use of petitioner's immunized Grand
Jury minutes as a part of the case in chief against
him; and held that the "laches" defense was
unavailable to petitioner.
OPINION OF THE APPELLATE DIVISION
The opinion (App. B, infra) and order (App.
A, infra) of the Appellate Division of the Supreme
Court of the State of New York, First Judicial
Department adopted the referee's report in toto.
It also denied the petitioner's cross-motion to
Stay the imposition of discipline upon him pend-
ing his return to the Federal District Court for
the resolution of his federal constitutional
questions.
SUMMARY OF THE ARGUMENT
In Erdmann v. Stevens, 485 F.2d. at 1211, the
Second Circuit held that while the practice of law
is a privilege, once granted, it may not be taken
away without due process of law. Erdmann aiso
stands for the principle that attorney disciplin-
ary proceedings are quasi-criminal in nature.
Petitioner received transactional immunity in
connection with his testimony before the Grand
Jury by a state officer expressly authorized to
commence attorney disciplinary proceedings.
Furthermore, he was expressly promised that this
state officer would not initiate or refer the mat-
ter to the Grievance Committee.
For this reason, we respectfully urge that
the prosecution of petitioner was barred by virtue
of his immunity and further by virtue of the doc-
trine set down in Palermo v. Warden, Green Haven
State Prison, 545 F.2d. 286 (2nd Cir., 1976).
The district attorney's ex-parte application
to turn over petitioner's immunized Grand Jury
minutes deprived petitioner of notice of applica-
tion and an opportunity to be heard in opposition
thereto [Bodiev. Connecticut, 91 S.Ct. 780; Mul-
lane v. Central Hanover Bank and Trust Co., 339
U.S. 309, 70 S.Ct. 652; Goldberg v. Kelly, 397
U.S. 254; Snaidach v. Family Finance Corporation,
395 U.S. 337; In re: Winship, 397 U.S. 358; Arm
strong v. Manzo, 380 U.S. 554]. Such utter lack
of due process cannot be countarenced in attorney
disciplinary proceedings [Erdmann v. Stevens,
supra].
The Grievance Committee received these
minutes in February of 1971. Yet they waited
until 1973 to notify and charge petitioner with
misconduct, a charge eventually heard in June of
-8-
1973, at a hearing whereat the Chief Counsel pre-
sented the charge solely and wholly by resting its
case upon the presentation of the transcript of
petitioner's immunized Grand Jury minutes.
The flagrance of these acts so shocked peti-
tioner that he brought suit in the United States
District Court for the Southern District of New
York, seeking an injunction against the use of the
Grand Jury testimony in the disciplinary proceed-
ing. Ultimately, the District Court dismissed on
abstention grounds, the Second Circuit affirmed,
and this Court denied certiorari.
Petitioner and his counsel took exception to
any conclusion that petitioner, who has properly
invoked the jurisdiction of the Federal District
Court to consider federal constitutional claims
and heard that Court postpone such consideration
upon abstention grounds, can be compelled through
no fault of his own, to accept instead a state
court's determination of those claims. Such a
result, this Court has held:
"... would be at war with the un-
‘qualified terms in which Congress,
pursuant to constitutional autho-
rization, has conferred specific
categories of jurisdiction upon
the federal courts, and with the
principle that 'When a Federal
court is properly appealed to in
a case over which it has by law
jurisdiction, it is its duty to
take such jurisdiction ... The
right of a party plaintiff to
choose a Federal court where
there is a choice cannot be pro-
perly denied.’ (Citation omit-
ted) Nor does anything in the
abstention doctrine require or
Support such a result. Absten-
-9-
tion is a judge-fashioned vehicle
for according *»propriate deference
to the ‘respective competence of the
state and federal court systems. '
(Citation omitted) Its recognition
as the final expositors of state law
implies no disregard for the primacy
of the federal judiciary in deciding
questions of federal law. (Citation
omitted) Accordingly, we have on
several occasions explicitly rec-
ognized that abstention ‘does not,
of course, involve the abdication
of federal jurisdiction, but only
the postponement of its exercise. '
It is true that, after a
post-abstention determination and
rejection of his federal claims by
the state courts, a litigant could
seek review in this Court. (Cita-
tion omitted) But such review, even
when available by appeal rather than
only by discretionary writ of cert-
iorari, is an inadequate substitute
for the initial District Court deter-
mination — often by three judges,
28 U.S.C. §2281 -- to which the lit-
igant is entitled in the federal
courts. This is true as to issues
of fact. Limiting the litigant to
review here would deny him the bene-
fit of a federal trial court's role
in constructing a record and making
fact findings. How the facts are
found will often dictate the deci-
sion of federal claims. ‘It is the
typical, not the rare, case in
which constitutional claims turn
upon the resolution of contested
factual issues.' (Citation omit-
ted) 'There is always in liti-
-10-
gation a margin of error, represent-
ing error in factfinding ...' (Cita-
tion omitted) Thus in cases where,
but for the application of the ab-
stention doctrine, the primary fact
determination would have been by the
District Court, a litigant may not
be unwillingly deprived of that
determination. (Citation omitted)
The possibility of appellate review
by this Court of a state court de-
termination may not be substituted,
against a party's wishes, for his
right to litigate his federal claims
fully in the federal courts. We
made this clear only last Term in
NAACP v. Button, supra, 371 U.S.
at 427, when we said that ‘a party
has the right to return to the
District Court, after obtaining the
authoritative state court construc-
tion for which the court abstained,
for a final determination of his
clain.'
We also made it clear in
Button, however, that a party may
elect to forego that right. Our
holding in that case was that a
judgment of the Virginia Supreme
Court of Appeals upon Federal is-
sues submitted to the state tribu-
nals by parties remitted there
under the abstention doctrine was
"final' for purposes of our review
under 28 U.S.C. §1257. In so de-
termining, we held that the peti-
tioner had elected 'to seek a com-
plete and final adjudicaticn of
[its] rights in the state courts’
and thus not return to the District
Court, and that it had manifested
elie
this election 'by seeking from the
Richmond Circuit Court "a binding
adjudication" of all its claims and
a permanent injunction as well as
declaratory relief, by making no
reservation to the disposition of
the entire case by the state courts,
and by coming here directly on cert-
iorari.' 371 U.S. at 427-428. We
fashioned the rule recognizing such
an election because we saw no incon-
sistency with the abstention doc-
trine in allowing a litigant to
decide, once the federal court has
abstained and compelled him to pro-
ceed in the state courts in any
event, to abandon his original
choice of a federal forum and sub-
mit his entire case to the state
courts, relying on the opportunity
to come here directly if the state
decision on his federal claims
should go against him. Such a
choice by a litigant serves to
avoid much of the delay and expense
to which application of the absten-
tion doctrine inevitable gives rise;
when the choice is voluntarily made,
we see no reason why it should not
be given effect."
not attempt to come directly to this
Court but sought to return to the
District Court, requires such a de-
termination. The line drawn should
be bright and clear, so that liti-
gants shunted from federal to state
courts by application of the absten-
tion doctrine will not be exposed,
not only to unusual expense and de-
lay, but also to procedural traps
operating to deprive them of their
right to a District Court deter-
mination of their federal claims.
(Citation omitted) It might be
argued that nothing short of what
was done in Button should suffice --
that a litigant should retain the
right to return to the District
Court unless he not only litigates
his federal claims in the state
tribunals but seeks review of the
state decisions in this Court.
(Citation omitted) But we see no
reason why a party, after unre-
servedly litigating his federal
. Claims in the state courts although
not required to do so, should be
allowed to ignore the adverse state
decision and start all over again
in the District Court. Such a rule
would not only countenance an unnec-
essary increase in the length and
This Court went on to list the specific steps
that a litigant must take in order to reserve his
federal constitutional claims for adjudication by
the Federal Court system:
cost of the litigation; it would
also be a potential course of fric-
tion between the state and federal
judiciaries. We implicitly re-
"In Button, we had no need jected such a rule in Button, when
to determine what steps, if any, we stated that a party elects to
short of those taken by the peti- forego his right to return to the
tioner there would suffice to District Court by a decision 'to
manifest the election. The in- seek a complete and final adjud-
stant case, where appellants did ication of his rights in the state
~3- “13
courts.' We now explictly hold that
if a party freely and without reser-
vation submits his federal claims
for decision by the state courts,
litigates them there, and has them
decided there, then -- whether or
not he seeks direct review of the
state decision in this Court -- he
has elected to forego his right to
return to the District Court.
This rule requires clarifi-
cation of our decision in Govern-
ment Employees v. Windsor, 353 U.S.
364, the case referred to by the
District Court. The plaintiffs in
Windsor had submitted to the state
courts only the question whether
the state statute they challenged
applied to them, and had not ‘ad-
vanced' or ‘presented’ to those
courts their contentions against the
state's constitutionality. We held
that ‘the bare adjudication by the
Alabama Supreme Court that the [ap-
pellant] union is subject to this
Act does not suffice, since that
court was not asked to interpret
the statute in light of the con-
stitutional objections presented
to the District Court. If appel-
lants' freedom-cf-expression and
equal-protection arguments had
been presented to the state court,
it might have construed the statute
in a different manner.’ 353 U.S.
at 366. On oral argument in the
instant case, we were advised that
appellants’ submission of their
federal claims to the state courts
had been motivated primarily by a
belief that Windsor required this.
oy
The District Court likewise thought
that under Windsor a party is re-
quired to litigate his federal ques-
tions in the state courts and ‘dare
not restrict his state court case to
local law issues.' 194 F. Supp., at
522. Others have read Windsor the
same way. (Citation omitted) It
should not be so read. The case
does not mean that a party must
litigate his federal claims in the
state courts, but only that he must
inform those courts what his fed-
eral claims are, so that the state
statute may be construed ‘in light
of’ those claims. See Note, 73
Harv. L. Rev. 1358, 1364-1956 (1960).
Thus mere compliance with Windsor
will not support a conclusion, much
less create a presumption, that a
litigant has freely and without
reservation litigated his federal
claims in the state courts and so
elected not to return to the Dis-
trict Court.
We recognize that in the heat
of litigation a party may find it
difficult to avoid doing more than
is required by Windsor. This would
be particularly true in the typical
case, such as the instant one, where
the state courts are asked to con-
strue a state statute against the
backdrop of a federal constitutional
challenge. The litigant denying the
statute's applicability may be led
not merely to state his federal con-
stitutional claim but to argue it,
for if he can persuade the state
court that application of the
statute to him would offend the
o1$=
Federal Constitution, he will ord-
inarily have persuaded it that the
statute should not be construed as
applicable to him. In addition,
the parties cannot prevent the
state court from rendering a deci-
sion on the federal question if it
chooses to do so; and even if such
a decision is not explicit, a hold-
ing that the statute is applicable
may arguable imply, in view of the
constitutional objections to such
a construction, that the court con-
siders the constitutional challenge
to be without merit.
Despite these uncertainties
arising from application of Windsor
-- which decision, we repeat, does
not require that federal claims be
actually litigated in the state
courts -—- a party may readily fore-
Stall any conclusion that he has
elected not to return to the Dis-
trict Court. He may accomplish
this by making on the state record
the ‘reservation to the disposition
of the entire case by the state
courts’ that we referred to in But-
ton. That is, he may inform the
state courts that he is exposing
his federal claims there only for
the purpose of complying with
Windsor, and that he intends,
should the state courts hold
against him on the question of
state law, to return to the Dis-
trict Court for the disposition
of his federal contentions. Such
an explicit reservation is not
indispensable; the litigant is in
no event to be denied his right to
-16-
return to the District Court unless
it clearly appears that he voluntarily
did more than Windsor required and
fully litigated his federal claims in
the state courts." (England v.
Louisiana State Board of Medical
Examiners, 375 U.S. 411]
In footnote 12 at page 421, this Court pos-
tulated:
"It has been suggested that
state courtsmay ‘take no more
pleasure than do federal courts
in deciding cases piecemeal ...
and ‘probably prefer to determine
their questions of law with com
plete records of cases in which
‘they can enter final judgments
before them’ Clay v. Sun Ins. Of-
fice, 363 U.S. 207, 227 (dissent-
ing opinion). We are confident
that state courts, sharing the ab-
stention doctrine's purpose of
"furthering the harmonious re-
‘lation between state and federal
authority’, Railroad Comm'n v.
Pullman Co., 312 U.S. 496, 501,
will respect a litigant's reser
vation of his federal claims for
decision by the federal courts."
[England v. Louisiana State Board
of Medical Examiners, 375 U.S. at
421]
'
However, the clear mandate was:
"When the reservation has
been made, however, his right to
return will in all events be
preserved." [England v. Louis-
iana State Board of Medical
alfa
Examiners, 375 U.S. at 421-422]
Justice Douglas, in his concurring opinion,
predicted that England would result in procedural
problems [375 U.S. at 435]:
"The Bar is now told that if
one repairs to the state courts and
submits the state law question along
with the federal constitutional ques-
tions, he will be presumed to have
elected to pursue the state remedy,
unless he makes clear a purpose to
return to the federal court when the
state court has made its ruling. I
gather that, without that reserva-
tion, the record will be taken to
mean that ‘he volunarily litigated
his federal claims in the state
courts’. Or, if he forgets or fails
to make such a reservation, he can
still preserve his right to return
to the federal court by doing what
the Court now says is required of
him by Windsor. For he is told
today that instead of submitting his
federal claims to be ‘litigated’, he
may submit his state law questions
only for consideration ‘in light of'
the federal questions. Those who
read this opinion may have adequate
warning. But this opinion, like
most, will become an obscure one --
little known to the Bar. Lawyers
do not keep up with all the nuances
of court opinions, especially those
touching on an exotic rule of fed-
eral procedure as the one which we
evolve today. I fear therefore that
the rule we announce today will be a
veritable trap."
=
Petitioner did return to the state court, as
an involuntary respondent therein, where, at every
stage of the proceeding, he expressly reserved his
right to return to the Federal District Court to
litigate his federal constitutional questions fol-
lowing the resolution of his state issues.
A referee was appointed to hear and report
on the charges against petitioner as well as the
effect of the district attorney's promise, if in
fact such promise was made [Palermo v. Warden,
Green Haven State Prison, 545 F.2d. 286 (2nd Cir.
(1976) ].
The referee groundpetitioner guilty as
charged, reported that the Palermo defense was not
available to petitioner, noted petitioner's express
reservation of his right to litigate his federal
constitutional questions in the Federal District
Court, ignored the issue of the use of petitioner's
immunized Grand Jury testimony against him; held
that the "laches" defense was unavailable to peti-
tioner; and recommended leniency in the imposition
of discipline.
When the Grievance Committee moved to con-'
firm the referee's report and to impose discipline,
petitioner cross-moved to stay the imposition of
discipline pending his return to the Federal Dis-
trict Court for the resolution of his federal con-
stitutional issues.
The referee's report was confirmed in all
respects, the cross-motion for a stay denied, and
petitioner was suspended from the practice of law
for three (3) years.
As a result, petitioner has been compelled,
through no fault of his own, and following an
express reservation of his right to litigate his
federal constitutional questions in the Federal
District Court, to instead have imposed upon him
~19—
the inadequate substitute of a state determination
of those claims, with the inherent deprivation to
him of a federal trial court's role in construct-
ing a record and making fact findings, whichcculd
dictate the decision of federal claims.
This inadequate state court determination
permitted petitioner's immunized Grand Jury minutes
to be used against him as part of the Grievance
Committee's case in chief in violations of peti--—
tioner's Fifth Amendment rights; permitted the
district attorney to obtain an ex-parte order
authorizing the minutes of petitioner's immunized
Grand Jury testimony to be turned over to the
Grievance Committee in violation of petitioner's
Fourteenth Amendment rights; and sanctioned un-
justified and prolonged prosecutorial delay in
the commencement of the proceeding in violation
of petitioner's Sixth Amendment rights.
IMPORTANCE OF THIS PETITION
This petition presents a situation where a
State court has decided federal questions of sub-
stance not heretofore determined by this Court,
and has decided them in a way which is contrary
to the applicable decisions of this Court:
1. The state courts usurpation of the Fed-
eral District Court's role determining federal
constitutional questions, under the circumstances
hereinbefore stated, is contrary to the doctrines
set down in Government Employees v. Windsor, 353
U.S. 364 and England v. Louisiana State Board of
Medical Examiners, 375 U.S. 41l. The failure of
the state court to stay the impositions of dis-
cipline upon the petitioner pending his return
to the Federal District Court for resolution of
his federal constitutional questions is likewise
contrary to this Court's decision in the same
cases.
-20-
2. The state court's sanction of the use of
petitioner's immunized Grand Jury testimony against
him as part of the Grievance Committee's case in
chief is a federal question not expressly decided
by this Court, although contrary to this Court's
decisions in Spevack v. Klein, 385 U.S. 511 and
Matter of Ruffalo, 20 L.Ed.2d. 1436.
3. The state court's sanction of the ex-
parte application for an order turning over peti-
tioner's immunized Grand Jury testimony to the
Grievance Committee is contrary to this Court's
decisions in Bodie v. Connecticut, 91 S.Ct. 780;
Mullane v. Central Hanover Bank and Trust Co.,
399 U.S. 306, 70 S.Ct. 652; Goidberg v. Kelly,
397 U.S. 254; Snaidach v. Family Finance Corpora-
tion, 395 U.S. 337; In re: Winship, 397 U.S. 358;
and Armstrong v. Manzo, 380 J.S. 554.
4. The state court's denial of petitioner's
claim of extreme prejudice (death of witnesses,
etc.) by virtue of the unjustified and unreasonable
prosecutorial delay in the prosecution of thestate
proceeding is contrary to this Court's decisions
in Matter of Ruffalo, 20 L.Ed.2d. 1436; Barker v.
Wingo, 407 U.S. 514; Klopher v. North Carolina,
386 U.S. 213; and Spevack v. Klein, 385 U.S. 51l.
CONCLUS ION
Petitioner respectfully prays that the peti-
tion for-a Writ of Certiorari be granted.
Respectfully submitted,
J. JEROME OLITT
Petitioner, Pro Se
25 Broad Street
Penthouse Suite
New York, N.Y. 10004
(212) 661-8686
New York, New York
August lst, 1978 ~21-
APPENDIX A
OPINION OF THE APPELLATE DIVISION
In the Matter of J. JEROME OLITT (Admitted as
JEROME OLITT), an Attorney, Respondent. Associ-
ation of the Bar of the City of New York, Petit-
ioner.
First Department, March 7, 1978.
PER CURIAM:
Respondent was admitted to the Bar in 1954
in the Second Judicial Department. In 1960, he
was suspended from the practice of law for two
years. (Matter of Silver v. Olitt, 10 AD2d 880,
and was readmitted in 1962 Matter of Olitt, 17
AD2d 843.)
Charges of professional misconduct and con-
duct prejudicial to the administration of justice
in that respondent violated Canons of Professional
Ethics (15, 16, 29, 32) in the years 1965 and
1966, were brought and were heard in 1976-1977
before a Referee, Honorable Jacob Grumet.
The Referee found that in 1965 the respondent
representing a builder, sought to have a zoning
change application, submitted on behalf of a rival
builder, de_ayed. The respondent thereafter de-
livered money in cash to a person who claimed he
could effect such delay. Respondent denied that
the money passed was to be used to influence the
decisions of public officials. The respondent
was granted immunity and testified in an ongoing
investigation before a New York County Grand Jury
as to his actions on behalf of his client, and he
cooperated fully with the District Attorney and
was granted transactional immunity. He was not
oD te
— =
‘
.
Opinion Of The Appellate Division
prosecuted.
The petitioner learned of respondent's mis-
conduct in January, 1970 and began proceedings in
1973.
The Referee in his conclusion stated that
the underlying reason for respondent's present
situation was his overriding desire to please an
important client and thereby enhance and improve
his professional relationship with the client, and
that this so warped his judgment that he failed
to see the hazards of his undertaking. Further,
that respondent has practically depleted his
family resources because of his involvement in
this protracted matter. The Assistant District
Attorney has confirmed that respondent's meaning-
ful assistance and extensive cooperation resulted
in indictments. The Referee recommended that
leniency be extended to the respondent.
The motion by petitioner to confirm the re-
port of the Official Referee finding that the
charges of professional misconduct have been sus-
tained by the proof, is granted. Were it not for
the full cooperation given by the respondent to
the law enforcement authorities, we would disbar
the respondent. The findings of the Referee are
based upon a first-hand opportunity to make his
own observations and judgment on the content and
character of the testimony before him, and due
weight should be given his recommendation. There-
fore, we have determined that the respondent be
suspended from practice for a period of three
years and until further order of this court. (See
Matter of Freyberg, 42 AD2d 454, motion for lv to
app den 33 NY2d 520, reinstatement 56 AD2d 815.)
KUPFERMAN, J. P., LUPIANO, SILVERMAN, EVANS,
and LANE, JJ., concur.
APPENDIX B
ORDER OF THE APPELLATE DIVISION
In the Matter of J. JEROME OLITT (Admitted as
JEROME OLITT), an Attorney, Respondent. Associ-
ation of the Bar of the City of New York, Petit-
ioner.
The Association of the Bar of the City of
New York, by John G. Bonomi, Esq., its attorney,
having presented to this Court on June 1, 1976,
a petition containing charges of professional
misconduct against the above-named respondent,
J. Jerome Olitt (admitted as Jerome Olitt), who
was admitted to practice as an attorney and coun-
selor-at-law in the State of New York, on June 23,
1954, at a term of the Appellate Division of the
Supreme Court, Second Judicial Department, and
having petitioned the Court to take such action
upon such charges as in the judgment of said
Court justice may require; and the respondent
having appeared herein by his attorneys, Anderson
Russell Kill & Olick, P.C., and having interposed
an answer to said petition, duly verified May 28,
1976, and petitioner having submitted a reply to
said answer, and the Court having duly made and
entered an order on June 23, 1976, appointing
Daniel Gutman, Esq., as Referee herein to take
testimony in regard to said charges and to re-
port to this Court his opinion thereon; and an
order of this Court having been made and entered
on December 3, 1976 (1) denying respondent's
mot ion to dismiss the petition or, in the alterne
tive, for leave to appeal to the Court of Appeals,
(2) vacating the appointment of Daniel Gutman,
Esq., as Referee, and (3) appointing Hon. Jacob
Grumet as such Referee, and a hearing, pursuant
to said order of sas) having been duly held
Order Of The Appellate Division
before said Referee and said Referee having duly
heard the testimony and proofs tendered by the
parties hereto, and having thereafter rendered
his report thereon to this Court, which report
was dated October 25, 1977, and was filed in the
office of the Clerk of this Court on November 10,
1977;
And the petitioner thereafter and on Decem-
ber 29, 1977, having moved for an order confirm-
ing the Referee's report and adjudging the res-
pondent guilty of professional misconduct and
that the Court take such action herein as it
might deem just and proper; and the respondent
having cross-moved on December 29, 1977, for an
order disaffirming the Referee's report, dismiss-
ing the petition and staying that branch of petit-
ioner's motion seeking to impose discipline;
Now, upon reading the petition of The Associ-
ation of the Bar of the City of New York, veri-
fied May 10, 1976, the affidavit of John G.
Bonomi, Esq., annexed thereto, sworn to May 10,
1976, the notice of presentation of said petition,
dated May 11, 1976, with proof of due service
thereof upon the respondent, the answer of the
respondent to said petition, verified May 28,
1976, the reply of petitioner to respondent's ans-
wer, verified June 10, 1976, the order of this
Court, dated June 23, 1976, appointing Daniel
Gutman, Esq., as Referee herein, all of which
papers were duly filed in the office of the Clerk
of this Court on June 23, 1976, and the further
order of this Court entered on December 3, 1976
vacating the appointment of Daniel Gutman, Esq.
and appointing Hon. Jacob Grument as such Referee,
filed in the office of the Clerk of this Court on
December 3, 1976, the report of Hon. Jacob Grumet,
the Referee herein, dated October 25, 1977, to-
gether with the testimony taken by him and the
-—
Order Of The Appellate Division
exhibits ordered in evidence, which were filed in
the office of the Clerk of this Court on November
10, 1977; and upon reading and filing the notice
of motion for an order confirming the report of
the Referee and adjudging the respondent guilty
of professional misconduct, dated November 30,
1977, with proof of due service thereof, the
notice of cross-motion for an order disaffirming
the Referee's report, dismissing the petition and
Staying that branch of petitioner's motion seek-
ing to impose discipline dated December 22, 1977
with proof of due service thereof, and after
hearing Mr. James D. Porter, Jr. for the motion
and in opposition to that branch of the cross mo-
tion seeking to stay imposition of discipline, and
Mr. William L. Darrow in opposition to the motion
and in support of the cross-motisn and due delib-
eration having been had thereon and upon the Per
Curiam Opinion filed herein; and the Court having
unanimously found and decided that the respondent
has been guilty of professional misconduct in his
office of attorney and counselor-at-law, it is
hereby unanimously
Ordered that the report of Hon. Jacob Grumet,
the Referee herein, filed in the office of the
Clerk of this Court no November 10, 1977, be, and
the same hereby is, confirmed, and the cross-mot-
ion denied in all respects; and it is further
unanimously
Ordered that this J. Jerome Olitt (admitted
as Jerome Olitt) be and he hereby is suspended
from practice as an attorney and counselor-at-law
in the State of New York, for a period of three
(3) years effective April 7, 1978 and until the
further order of this Court, with leave to apply
for reinstatement after the expiration of said
period of three (3) years upon furnishing satis-
factory proof that during said period he has
-26-
i sasianacielll
we
tu,
5 bts BN aaaen Katinas ab beled 2 iin Se td donna Sepahas ith
Order Of The Appellate Division
actually refrained from attempting to practice as
an attorney or counselor-at-law and has otherwise
properly conducted himself and has fully complied
with Title 22, Section 603.13 of the Rules of the
Appellate Division, Supreme Court, First Judicial
Department, annexed hereto and made a part hereof;
and it is further unanimously
Ordered that said J. Jerome Olitt (admitted
as Jerome Olitt) be and he hereby is commanded to
desist and refrain from the practice of law in any
form, either as principal or agent, clerk or em-
ployee of another, for a period of three (3) years
effective April 7, 1978 and until the furtherorder
of this Court; and it is further unanimously
Ordered that said J. Jerome Olitt (admitted
as Jerome Olitt) be and he hereby is forbidden to
appear as an attormey or counselor-at-law before
any court, judge, justice, board, commission, or
other public authority for a period of three (3)
years effective April 7, 1978 and until the further
order of this Court; and it is further unanimously
Ordered that said J. Jerome Olitt (admitted
as Jerome Olitt) be and he hereby is forbidden to
give another an opinion as to the law or its ap-
plication or any advice in relation thereto, for a
period of three (3) years effective April 7, 1978
and until the further order of this court.
ENTER:
ALAN M. BERGER
DEPUTY Clerk.
oa? Ja
APPENDIX C
REFEREE'S REPORT
SUPREME COURT
OF THE STATE OF NEW YORK
Appellate Division - First Department
In the Matter
of
J. JEROME OLITT (admitted as
JEROME OLITT),
An Attorney.
I, JACOB GRUMET, the Referee appointed by
the order ot this Court made and entered December
3, 1976, to take testimony in regard to the char-
ges of professional misconduct by the above named
respondent, as set forth in the petition of the
Association of the Bar of the City of New York,
verified May 10, 1976, and to report the same with
my opinion thereon to this Court, having been duly
sworn as Referee herein on the 6th day of December
1976 before Hon. Xavier C. Riccobono, one of the
Justices of the Supreme Court of the State of New
York, do hereby report as follows:
Petitioner appeared by John G. Bonomi, Esq.,
and subsequently by James D. Porter, Esq., its
-2?3-
* ‘2 ‘
Ase Gtoles- te at RB: na stei Bat TEA Dis AB cle was te at tate Ae ew BE ab Attn
attorney (by Saul Friedberg, Esq., of Counsel).
Respondent was represented in these proceedings
by his attorneys, first by Phillips Nizer Benja-
min Krim & Ballon, Esqs. (by Angelo Cometa, Esq.,
of Counsel), then by Anderson Russell Kill &
Olick, Esqs. (by Authur S. Olick, Esq., of Coun-
sel), and later at the hearings before me by
Paul Weiss Rifkind Wharton & Garrison, Esqs. (by
Martin London and Richard Mescon, Esqs., of Coun-
sel).
Hearings were held on April 11, 18, 22, May
is oe an 2, Se Jane GS, 9, 14, 15, 1977.
I. THE PETITION AND THE CHARGE
The petition alleges, in paragraph "IV"
thereof, that the respondent has been guilty of
professional misconduct and conduct prejudicial
to the administration of justice in violation
of Section 90 of the Judiciary Law of the State
of New York and of Canons 15 (How Far a Lawyer
May Go in Supporting a Client's Cause), 16
(Restraining Clients from Improprieties), 29 (Up-
holding the Honor of the Profession), and 32 (The
Lawyer's Duty in Its Last Analysis) of the Canons
of Professional Ethics,* which were effective un-
til December 31, 1969.
In substance, the petition alleges that:
In or about December 1965, one Melvyn Kaufman,
a builder, requested respondent's assistance in
*The aforementioned Canons, with certain amend-
ments, have been incorporated into the Code of
Professional Responsibility, which became effec-
tive January 1, 1970. See Appendix to the Judic-
iary Law, McKinney's Consolidated Laws of New
York Annotated.
= 29a
finding a means to delay approval of, or block
entirely, an application for a zoning variance
which was sought by one Sigmund Sommer and which
was ultimately to be heard before the New York
City Planning Commission. Respondent thereafter
conferred with another builder, Ralph Elyacher,
concerning Kaufman's request and respondent sought
Elyacher'’s assistance in obtaining the desired
delay or blockage of Sommer's application.
Elyacher subsequently advised respondent
that he, with the aid of other individuals, would
undertake to delay or block the Sommer application;
he further advised respondent that Kaufman would
have to pay a sum of money to be determined by
the degree of success attained in either delaying
or blocking the application. During this conver-
sation, Elyacher refused to reveal to respondent
the identity of the individuals who would be as-
sisting him and he requested that his own identity
be concealed from Kaufman. The petition further
alleges that, at that time, respondent believed
that the means to be employed by Kaufman and Ely-
acher in delaying or blocking the Sommer applic-
ation were to be illegal and that the money to be
paid did not constitute a legal fee.
Thereafter, Elyacher presented to respondent
a written schedule of periodic payments to be made
by Kaufman which depended upon the length of time
that the application was delayed or blocked. Res-
pondent presented this schedule of payments to
Kaufman who made various cnanges in it and return
ed it to respondent. Respondent then returned the
amended schedule to Elyacher, who subsequently ad-
vised respondent that the amendments were accept-
able and respondent communicated Elyacher's ap-
proval to Kaufman.
Kaufman thereupon advised respondent that he
would make the initial payment, which respondent
-30-
Bike tie Seton
ee
Ee ee et oe eee eee ek ee ee eee
believed to be the sum of $17,500, by withdrawing
cash from his private vault and delivering the
money to respondent in a box of wood samples for
transmittal to Elyacher. On or about March 12,
1966, the box of wood samples containing cash was
delivered to respondent's office and, pursuant to
respondent's instructions, it was given to Ely-
acher. It is alleged that, at that time, respon-
dent believed that the money delivered to Elyacher
did not constitute a legal fee, but was to be used
to influence the decisions of public officials.
Respondent thereafter continued to act as an
intermediary between Kaufman and Elyacher in re-
gard to the aforesaid attempt to block or delay
the Sommer application.
THE RESPONDENT'S ANSWER
Apart from denying any knowledge or infor-
mation with respect to the corporate status and
purposes of the petitioner and as to certain
actions taken by the petitioner's Committee on
Grievances and its Executive Committee, and also
denying certain statements made in subparagraphs
1 and 2 of the Charge, as set forth in paragraph
Iv" of the petition, the respondent, in effect,
admits the allegations contained in the petition
and in the Charge, except:
1. Respondent denies that he has been guilty
of professional misconduct and conduct prejudicial
to the administration of justice as set forth in
paragraph "IV" of the petition;
2. Respondent denies the allegation that he
believed that the means to be employed by Kaufman
and Elyacher in delaying or blocking the Sommer
application were to be illegal and that the money
to be paid did not constitute a legal fee (para-
graph 5 of the Charge);
a She
3. Respondent denies that he believed that
the money delivered to Elyacher did not constitute
a legal fee but was to be used to influence the
decisions of public officials (paragraph 11 of the
Charge).
In addition, the respondent asserted eight
affirmative defenses in his Answer, which can be
summarized as follows:
The First: That at no time did respondent
know or believe or have reason to believe that
the means to be employed by Kaufman and/or Ely-
acher in blocking or delaying the Sommer appli-
cation were to be illegal, immoral or unethical
or that the money to be paid was to be used to
influence the decisions of public officials and,
in fact, such money was not so used.
The Second: That the instant proceedings
were instituted by petitioner and are predicated
solely and exclusively or in substantial part upon
testimony given by respondent before a New York
Grand Jury under a grant of transactional immunity.
That the Fourth and Fifth Amendments to the United
States Constitution, as applied to state action
through the Fourteenth Amendment, precluded the
imposition upon an attorney of the penalty of sus-
pension from the practice of law on the basis of
the attorney's compelled testimony as aforesaid
and prohibit the use in disciplinary proceedings
of such compelled testimoney. Respondent expressly
reserves his right to litigate his Federal consti-
tutional claims in the Federal Court.
The Third: That on account of the delay of
almost seven years in the commencement of the
instant disciplinary proceedings in January 1973,
petitioner is estopped by its own laches from
prosecuting the proceeding and from seeking to
cause the respondent to be disciplined by reason
ain
Le Se
ea 8 oi oe ask
ss seiarsidicbaitiieaiasts
of events which occurred in 1965-66.
The Fourth: That on March 9, 1976, respond-
ent requested a copy of the report and recommen-
dation of the petitioner's Committee on Griev-
ances to the petitioner's Executive Committee and
an opportunity to be heard by the Executive Com
mittee both orally and in writing, which request
was summarily denied. That in denying respondent
the opportunity to confront his accusers, to ans-
wer the charges against him and to appear through
counsel in his own defense, petitioner's Executive
Committee has acted without authority, contrary
to its own by-laws and in derogation of respond-
ent's rights to a fair hearing and due process.
‘The Fifth: That the respondent's testimony
before the grand jury upon which these proceedings
are predicated was obtained on the explicit assur-
ance and affirmative representation of the district
attorney that the matter would not be referred to
petitioner for disciplinary proceedings and only
after respondent was granted transactional im-
munity. That on or about February 4, 1971, the
district attorney, in breach of his aforesaid
agreement with respondent, applied to the Supreme
Court, New York County, for release of the minutes
of respondent's grand jury testimony and obtained
an order releasing the same to petitioner. There-
fore, the evidence upon which this proceeding is
predicated was improperly, unethically and illegal
ly obtained.
The Sixth: That the New York statutory dis-
ciplinary procedure denies accused attorneys due
process of law and, therefore, the petition fails
to state a claim and is null, void and of no force
and effect.
The Seventh: That the petition fails to
state a claim upon which relief may be granted.
—\
The Eighth: That on or about May 7, 1974,
petitioner proceeded to present its case against
respondent before the Committee on Grievances pur-
suant to the charge letter of April 16, 1974. On
November 20, 1975, petitioner's Committee on
Grievances convened a new hearing panel and initi-
ated proceedings de novo. That the said action by
petitioner placed respondent in double jeopardy in
viclation of his rights under the Fifth Amendment
of the United States Constitution.
The petitioner served a reply to respondent's
answer in which it denied certain allegations on-
tained in the affirmative defense and asserted
that the respective affirmative defenses, Second
to Eighth inclusive, do not constitute a defense
to the petition as a matter of law.
It should be pointed out here that the res-
pondent brought on a motion in this Court, return-
able on August 2, 1976, for "an order pursuant to
CPLR Sec. 3211(a) and for summary judgment pur-
Suant to CPLR Sec. 3212(b) dismissing the petition
herein as a matter of law’ on the same grounds as
are set forth in the aforesaid affirmative defen-
ses contained in the respondent's answer, except
for the grounds alleged in the First Affirmative
Defense which, in effect, deny the basic allega-
tions of the petitioner's charge against respon-
dent. By order of this Court, dated December 3,
1976, the respondent's motion was denied. This
decision and order, in my opinion, resolved and
removed from my consideration all of the same
legal issues raised in the affirmative defenses
set forth in the respondent's answer, except as
otherwise directed by this Court. This seems
clear from the following provision in the Court’s
order:
"It is further ordered that Hon. Jacob
Grumet be and he hereby is appointed
Referee in this proceeding to take
ebbiega > Githdhdes sean:
:
i
1
i
|
testimony in regard to the charges and
report the same with his opinion thereon
to the Court, and said Referee in consider-
ing the charges set forth in the petition,
should consider the effect of the District
Attorney's promise, if in fact such prom-
ise was made (Palermo et ano. v. Warden,
Green Haven State Prison, et al., U.S.
Court of Appeals, 2nd Cir., November 1,
1976) ;"
THE EVIDENCE ON THE CHARGE
As appears from what has been stated above,
this proceeding was initiated on the basis of
testimony that was presented in the course of a
grand j: ‘y investigation conducted by the District
Attorney of New York County in 1968. The res-
pondent testified before that grand jury under a
grant of immunity.
At the hearings before me, the petitioner
called as witnesses Melvyn Kaufman, Ralph Elyacher,
Michael Freyberg and James Marcus. The respendent,
J. Jerome Olitt, testified in his own behalf. He
also called several witnesses (mainly related to
the question of an alleged promise by the dist-
rict attorney) and character witnesses.
Despite the reluctance of the petitioner's
witnesses to testify and the extensive cross-
examination of witnesses, the basic facts in
this matter are quite simple, and to a great ex-
tent, are admitted by the respondent in his ans-
wer and in his testimony. In 1965, the respondent
was a tenant in a building owned by Melvyn Kauf-
man and members of his family (hereinafter re-
ferred to as the "Kaufman Organization") at 777
Third Avenue, Manhattan. While a tenant in that
building, respondent got to know Melvyn Kaufman
socially. Prior to early 1966, respondent had
a» ihn
performed some relatively minor legal services
for the Kaufman organization.
One day in December 1965 or January 1966,
the respondent, while in the office of Melvyn
Kaufman, was informed by Kaufman that he had a
problem which he would "like to kick around" with
respondent (Respondent, 921-922).* He then pro-
ceeded to tell respondent that he was a part own-
er and builder of a new office building under con
struction. at 437 Madison Avenue, Manhattan; that
another builder, Sigmund Sommer, was planning the
construction of a new high-rise office building
of approximately 40 stories on East 48th Street
around the corner of his building, just west of
Park Avenue; and that by Sommer securing certain
air rights and with an overpass, that building
would be connected to the building known as 280
Park Avenue and thereby have the use of that pres-
tigious address for his structure (Respondent,
923); that if the Sommer building "went up," it
would affect the tenants that Kaufman would be
soliciting for his building because the rental
charges per square foot would be about the same
for both buildings and since he did not, as yet,
have a prime tenant for his building, he would
have difficulty in obtaining a construction mort-
gage (Respondent, 925); that the Madison Avenue
building was Kaufman's responsibility in that the
Kaufman organization had put this property in his
name -— it was "his baby'' -— and therefore he was
concerned about the possibility of failure in this
enterprise; for these reasons, Kaufman "was anx-
ious to delay the completion date of Sommer's
building" (Respondent, 925-926).
*All numerical references are to the page numbers
in the transcript of the minutes of the hearings
held before me, together with the name of the
witness. 36
ncn aT 4 ha
fia ental.
Kaufman also told respondent that he was
mounting a campaign in opposition to Sommer's
contemplated construction "and more weight, more
opposition would hopefully result in that delay,
and he wanted as much opposition as I (respondent)
could get."' Kaufman asked respondent if he would
"ask around and see if a campaign could be mount-
ed''; respondent said that he did not know "any-
thing about that area" but that he "will ask
around" (Respondent, 926).
Following this first conversation with Kauf-
man, respondent did ask around and one of the
persons to whom he spoke was Ralph Elyacher, also
a builder, client and social acquaintance, of
respondent. After explaining the problem to
Elyacher and showing him some architectural draw-
ings which he received from Kaufman, Elyacher
said he would like to think about it and took
from respondent the drawings (Respondent, 928).
A few days later, Elyacher telephoned respondent
and said that he thought he could help Kaufman.
He also told respondent that he didn't want his
name used and he didn't want Kaufman to know that
he was the one who was helping him (Respondent,
929).
A day or so later, Elyacher came to respon-
dent’s office to discuss this matter. Elyacher
again stated to respondent that he thought he
could help Kaufman, and in that discussion went
on to say, "But it's going to cost Mel (Kaufman) ."
(Respondent, 930-931); he also explained that
since he was going to act as a "spoiler," he did
not want his name to be used or for Kaufman to
know that he was the one who was helping him;
besides, he and his family knew the families of
both builders that were involved. Respondent
testified that when he tried to inquire from Ely-
acher what he was going to do, respondent was
told:
=37=
"The Witness (Respondent): Your Honor,
all he told me was that he was going to
mount a campaign and when I tried to
inquire, and I did try to obtain what
he was going to do, he would say to me
"That's for me to know how I do these
things, do not ask me or press me or
pressure me, I don't want to discuss it
with you, I don't want to tell you how
I am going to do it that's up to me how
I am going to do it and don't worry,
there is nothing wrong and there is
nothing improper.'" (Respondent, 930-931)
In the grand jury the respondent related
that conversation as follows:
"Don't ask me, don't ask me anything about
the matter. You know, Jerry, I love you
like a brother; you're a buddy of mine
but I don't want you to ask me any
questions" he said, "but it's going to
cost him if he wants a delay. How
much of a delay does he want?"
(Grand Jury Trnascript, 472)
When respondent asked Elyacher what would be
involved with respect to the cost to Kaufman,
Elyacher took out a piece of paper "with a sched-
ule on it that had two columns," one column, on
the left side, had months listed, and the other,
on the right side, had "some numbers of financial
figures" (Respondent, 932). As explained by the
witness Elyacher, the contents of the schedule
provided for a certain down payment before any-
thing was done for Kaufman; then, certain payments
were to be made to Elyacher "every three months
or every six months or something like this, as the
thing was not approved" (Elyacher, 12, 14, 16, 17).
In other words, the payments to be made by Kaufman
would depend upon the number of months of ensuing
=3Q-
Ae ASU oe el elena
ee Pa ee Te eee
delay in the processing and disposition of the
Sommer application for a zoning variance.
Following this discussion with Elyacher, the
respondent brought this schedule of figures to
Kaufman and told him that "a personal friend and
client" of his thought that he could help, and
explained the aforesaid proposition made to him.
After Kaufman studied the schedule and made some
changes therein and gave his approval, respondent
returned the amended schedule to Elyacher, who
accepted the changes, and the arrangement was com
cluded. The amount of the down payment, as agreed
was $10,000* (Elyacher, 14). (This schedule pro-
vided for the eventual total payment of approxi-
mately $47,000; there was no clear testimony as
to the exact amount.)
With regard to the aforesaid meeting with
respondent, Kaufman testified:
"The Witness: To the best of my recol-
lection, Mr. Olitt said that -- let me,
before I respond, this was at the time
that the administration changed in the
City of New York and Mr. Lindsay had
-just come in with a clean-sweep broom.
Mr. Olitt suggested to me that he was
able to make contact with people in the
administration, via others, that he
knew of, or knew or something along
those lines. Something in that area in
the general statement." (Kaufman, 20)
*The testimony regarding the amount of this down
payment varied. In the grand jury respondent
testified that this down payment was $17,500.
=-39=
Kaufman further testified that in the course
of the aforesaid conversation 2t his home, the
matter of money was mentioned, as follows:
"Q. In the course of the conversation
with Mr. Olitt, which you have mentioned,
was any mention made of money?
A. Yes, sir.
Q. What was said about money?
A. Mr. Olitt informed me that
arrangements could be made for money,
whereby aid could be rendered in the
direction I was seeking.
Q. Did you agree to give Mr. Olitt
money for that purpose?
A. I agreed to give money, not to
Olitt, for that purpose.
Q. It was to be delivered to Mr. Olitt
for delivery for that purpose by him, is
that correct?
A. That's not put properly, but
essentially it was delivered to his
office, that's correct." (Kaufman, 25)
* * * * * * *
"The Referee: When you said that
arrangements could be made for money
and not for Mr. Olitt, for whom?
The Witness: I don't know.
Q. Was the money -- how was the money
delivered to Mr. Olitt?
In a box.
Was it a box of wood samples?
That's correct.
And it was cash?
Yes.
. And the cash was interleaved in the
wood samples?
DPAOPOY
-40-
The Referee: What?
Q. (Repeating) The cash was put inside the
box of the wood samples?
A. Yes, sir." (Kaufman, 26)
The witness explained that this box was the
size of a whiskey bottle box, and contains what
are called "flitches" or samples of veneers of
wood.
x ke *k * * *
"The Referee: Was there any reason
that these moneys were handled in cash
rather than check?
The Witness: That was the request
that was made.
The Referee: By whom?
The Witness: By -- the only one I
know of is Mr. Olitt.
The Referee: All right. Did he
give you a reason?
The Witness: The people with whom
he was dealing wanted cash." (Kaufman, 31)
Although Kaufman testified as above stated,
that the respondent told him that the people with
whom he was dealing wanted cash, the respondent
testified otherwise. He said that it was Kaufman
who advised him that he was going to make the pay-
ments in cash because "he didn't want his father
and brother to know that he was embarking upon any
other task" (Respondent, 929, 937, 950).
Upon being asked whether Elyacher ever asked
for the money in cash, and whether it would have
made a difference if he had asked for it in cash,
respondent answered: a
"A. Mr. London, if this Elyacher would
have asked for it in cash his assurances
would have perhaps fallen on deaf ears,
and I would not like the tone of it, but
when my own client is telling me reasons
why they do things that way, and why he
prefers it that way, and Elyacher said to
me he didn't care, he didn't care either
way, so when I --
The Referee: Elyacher wouldn't have
accepted a check made to his order from
the Kaufman organization?
The Witness: Absolutely not. It
could have been worse. He could have
made the check out to me." (Respon-
dent, 33-34)
Elyacher testified that respondent told him
that the money was to be paid in cash because
Kaufman wanted it that way (Elyacher, 732).
In any event, Kaufman made the initial down
payment of $10,000 during March 1966 (Respondent,
955; Elyacher, 24). Kaufman testified that he
put the cash in a box of wood samples and that
someone from his office deliver it to the respon-
dent's office. Respondent, at that time, was on
vacation with his wife in Puerto Rico. However,
prior to leaving, respondent notified Elyacher
that Kaufman would be delivering the cash to his
office in a box of wood samples and that Elyacher
would be informed when it arrived so that he could
come over to pick it up; respondent also left in-
structions with his office associate that if such
box was delivered by Kaufman's office, he should
call Elyacher and ask him to come over to take the
package or box. The box was delivered to respon-
dent's office and Elyacher came and fetched it.
The box was not opened while it was in respondent's
office and there is no claim by anyone that res-
pondent or anyone on his behalf received any part
of the cash enclosed therein (Respondent, 954-
955; Elyacher — cross, 732, 742).
As to what happened to this $10,000, the
testimony of Elyacher is that he took the box
which was delivered to respondent's office to his
own office; there he took the cash from the box
and put the money in a filing cabinet where it
remained for about a week; then, allegedly he put
part of the money in his bank and kept part in
his office (Elyacher, 726). What, if anything,
Elyacher did between March when he received the
money and June is not clear. But as wiil appear
later, something occurred in June which stirred
Elyacher into action. He allegedly retained an
attorney, Murray Boxer,* who had represented him
previously in real estate matters, to assist him
in opposing the Sommer application. For this
work, Elyacher said he paid Boxer some of the
money he received from Kaufman, without specifying
the amount (Elyacher, 726, 745, 749).
Elyacher further testified that he also dis-
cussed the situation with Michael Freyberg, a
personal friend whom he had known since the late
50's and who at the time here involved was a mem-
ber of the New York City Tax Commission. He was
appointed a member of that Commission in January
1966, and in about July of that year was appointed
President of the Commission. is position was
part time and he also practiced law (Elyacher,
17-18; Freyberg, 577, 578). It appears that after
Elyacher learned that the Sommer application was
transferred from the New York City Building De-
partment to the New York City Planning Commission
that he decided "to give money to Freyberg." Ely-
acher testified that he gave $5,000, in cash, to
*Murray Boxer died in 1971.
ad 9a
Michael Freyberg some time in 1966; he was not
sure of the date but he thought it was during the
summer of 1966, as he testified before the Griev-
ance Committee in 1975 and because of the afore-
mentioned reason which helped him fix that date
(Elyacher -- cross, 729, 752-756). The money was
placed in a white envelope by Elyacher and during
a luncheon meeting he had with Freyberg, he handed
the envelope to Freyberg who was told that money
was in the envelope.
There is some conflict in the testimony about
the conversation at this luncheon meeting between
Elyacher and Freyberg. After having his recollec-
tion refreshed, Elyacher admitted that he specific-
ally discussed with Freyberg the matter of the
Sommer application.
Freyberg, in his testimony, stated that in
his initial conversation with Elyacher, he was
asked whether he would represent Elyacher and
other people associated with him in connection
with a matter that was before the City Planning
Commission; that no names of anv of the persons
involved and no addresses of any buiidings were
mentioned; in fact, he did not believe that the
word "variance" came up in that conversation
(Freyberg, 578-580); subsequently, he had a dis-
cussion about this matter with James Marcus (who
had been an assistant campaign manager in the
Lindsay mayoralty campaign and who about this time
was Special Assistant to Mayor John V. Lindsay), a
close friend of his. Marcus told him that the law
firm with whom he was associated handled matters
of that nature, administrative proceedings; al-
though Marcus was not an attorney Freyberg said he
did not know this at that time. Subsequently,
Freyberg informed Elyacher of what Marcus had told
him and he gave Elyacher the names of Marcus and
Herbert Itkin (whom he believed to be either a
partner or in some way connected with Marcus in a
colin
law firm) and suggested that he speak to them
about this matter (Freyberg, 589). Elyacher ad-
vised him that he had already spoken to Itkin;
and later Elyacher told him that he had called
and spoken to Itkin and had asked the aforesaid
firm to represent him in the instant matter and
that they agreed to do so; and they determined
that the retainer fee was to be $5,000, subject
to being enlarged if the matter required a greater
fee (Freyberg, 589); at no time in his conversa-
tions with Elyacher did Elyacher mention the name
of the respondent, nor did he at that time know
the respondent (Freyberg, 585). Freyberg further
testified that thereafter Elyacher asked him to
give the fee ($5,000) to Marcus and/or Itkin, to-
gether with some documents or papers that were
relevant to the matter pending before the New York
City Planning Commission. The reason given him by
Elyacher for asking him to get involved "as more
or less a messenger boy" was because Elyacher felt
that since he was coming to the firm as a new
client, he would get better treatment as a friend
of Freyberg; he delivered the money and papers to
Marcus and Itkin at their office on Madison Avenue
he did not get any part of the money (Freyberg,
590-592); nor did he see them divide the money
(Freyberg, 591).
Petitioner also called Marcus as a witness,
whose testimony contradicted Freyberg's in the
following respects: Marcus testified that he
knew Michael Freyberg, having met him during the
Lindsay campaign in 1965; early in 1966, Freyberg
asked him to set up a meeting for him with Herbert
Itkin; he said that there was a matter about which
he wanted to talk to Itkin that involved a vari-
ance and that there was a fee. Approximately some
days later, he set up a meeting which took place
at 300 Madison Avenue and at which Itkin, Freyberg
and he were present. He stated that Freyberg
talked about a variance that "had something to do
-45-
with Park Avenue, I believe"; that he said "some-
body had come to him to block a variance and he
wondered if Itkin could get Oscar Bloustein to
intervene with his brother." Freyberg further
stated that "there was $5,000 initially and I
believe the figure was $20,000 total if it was
successful. So Freyberg split $5,000 three ways
among Itkin, Freyberg and myself" (Marcus, 77-79).
Marcus further testified that as he left the
library where the meeting took place, Oscar Blou-
stein was right outside the door and Itkin handed
him about $400, "At least, that's what he said.
That's what Itkin said he handed him. He said,
'Here, Ozzie, here's some money to start.’ And
he said, ‘I'll tell you the facts later.’ And he
walked with Freyberg and me to the elevator."
Itkin and Bloustein occupied neighboring offices
in the aforesaid suite of offices (Marcus, 79-80).
Marcus testified that he did not know the res-
pondent and never heard his name mentioned ouiside
of these proceedings (Marcus, 81).
The testimony of Freyberg and Marcus with
respect to the receipt and the distribution of
the money which they obtained from Elyacher is,
of itself, not controlling in the disposition of
this matter. But this testimony is significant
on the question as to whether it was within the
contemplation and belief of the parties making
the arrangement whereunder Kaufman turned over a
substantial sum of cash to respondent in a wooden
box which was given to Elyacher, that the said
moneys would or might be used improperly or il-
legally to obtain Kaufman's objective of delaying
or blocking the Sommer application.
Furthermore, while no evidence has been pre-
sented to show that the respondent received any
part of the moneys which passed from Kaufman
through respondent to Elyacher, the petitioner did
submit evidence which it is urged demonstrates
-46-
that respondent did benefit financially from his
participation in this Kaufman-Sommer affair.
Petitioner'switness, Kaufman, testified that the
respondent, as his “end" in the transaction, was
put on a legal retainer of $100 a week by the
Kaufman organization, which retainer was to last
"as long as this thing hung fire." The retainer
started in March 1966 and terminated in August
1966, for a total of about 21 weeks (Kaufman --
direct, 32-33). The respondent admits that he
was on retainer by the Kaufman organization of
$100 per week during this period for which he
claimed he rendered various services, but insists
that the said retainer and the period of its dur-
ation were merely coincidental with the then pend-
ing efforts by Elyacher and others to delay the
approval of the Sommer application, and had no
relationship thereto (Respondent, 902-904; 917).
In addition to the retainer of $100 a week, total-
ling $2,100, received by the respondent during
this period, he also received two additional fees
of $100 and $750, respectively for services ren-
dered to members of the Kaufman family. The res-
pondent felt that although these fees were inade-
quate he accepted them because he was on a weekly
retainer of $100 a week and had already received
about $2,000 (Respondent, 920-921). He was also
hoping that he would make a more permanent connect-
ion with the Kaufman organization.
To conclude the events of this entire situ-
ation, the testimony regarding one further inter-
vening episode should be mentioned. Respondent
testified that in June 1966, he received a tele-
phone call from Kaufman, who was "livid." He told
respondent that he had just received a letter from
Sommer's attorney notifying him, as one of the
owners of property within a certain radius of the
Sommer property, that his client's application for
a zoning variance will appear on the calendar of
the calendar of the New York City Planning Com-
wh Ja
mission on July 20, 1966. That evening, respon-
dent went to Kaufman's home where he found him to
be very upset about this letter. He told respon-
dent, among other things, that he didn't believe
that anything was being done about the Sommer
application and that he wants "to see a show of
strength," by which he meant that he wanted to
meet somebody and find out what was going on (Res-
-pondent, 43). Respondent told Kaufman that he
could not provide answers to his questions and he
therefore picked up the telephone and called Ely-
acher, without mentioning his name in Kaufman's
presence, and arranged to see him at respondent's
office the next day.
When respondent met Elyacher, he told him
about the letter which Kaufman had received and
how upset he and Kaufman were because of this de-
velopment; he also told Elyacher that he would
like to have someone meet Kaufman and tell him
what was being done for him. Elyacher promised
to "get back" to respondent. Within a day or two,
Elyacher contacted respondent and informed him
that an attorney, Murray Boxer, who was also a
Justice of the Peace in a small town in Rockland
County, but maintains his law practice in Manhat-
tan, and who was a specialist in real estate mat-
ters, knew everything that was being done for Kau&
man; he suggested that respondent arrange a meet-
ing at which Judge Boxer would explain everything
to Kaufman. Respondent telephoned Kaufman and
told him of the proposed meeting; later at Kauf-
man's office, respondent, in discussing the forth
coming meeting, for the first time, disclosed to
Kaufman the fact that Elyacher was involved in
the matter. Kaufman did not want to meet Boxer
at his office or in respondent's office, but rather
in a hotel room; accordingly, respondent engaged a
room at the Waldorf Astoria Hotel where the meet-
was held on June 22, 1966 at 2:00 P.M. (Respon-
dent, 964-967); present were Kaufman, Boxer, and
-43-
—
AL Ae a EN eee
respondent; Elyacher chose not to attend. Prior
to this meeting, respondent met with Elyacher for
lunch at noontime and there, for the first time,
met Boxer. At lunch, Elyacher tried to impress
respondent with Boxer's credentials as a special-
ist in these matters and also that he might be a
candidate for Lieutenant Governor in the upcoming
— primaries that fall (Respondent, 967-
At the meeting, respondent introduced Boxer
to Kaufman. Thereupon, Boxer explained to Kauf-
man what he planned to do for Kaufman, to wit,
to appear in person at the July 20th hearing of
the New York City Planning Commission and, in
the capacity of a private citizen, or represent-
ing an owner of record, to submit Papers which
he prepared and argue in opposition to the Sommer
application. Kaufman informed Boxer that he had
retained the law firm of Lindenbaum & Young to
Oppose the application. Arrangements were made
by Kaufman to have a copy of that law firm's
memorandum in opposition transmitted, through
respondent, to Elyacher so that their efforts
could be coordinated (Respondent, 976-978).
According to respondent, Kaufman was not at
all impressed with Boxer or what he could do. He
told the respondent as they left the meeting,
Who's that farmer? And are they kidding? -- The
guy is nuts." Subsequently, when respondent met
with Elyacher and reported on the meeting, he
admitted that Boxer "sounded idiotic" and that
the man was really erratic" (Grand Jury Trans-
cript, 578-579). In that connection, it appears
that when respondent testified before the grand
jury, he admitted that as a result of meeting
Boxer, he felt that Boxer was not the main person
that Elyacher was dealing with. At the hearings,
when respondent was confronted with his aforesaid
admission, he insisted that his answer before the
-49-
grand jury was incomplete and did not reflect
his view (Respondent -- cross, 1158-1159, 1162;
Grand Jury Transcript, 519-520).
It was also probably at about this time that
Elyacher, according to his testimony, decided to
give $5,000 to Freyberg, although he had spoken
to Freyberg about this matter earlier in 1966
(Elyacher -- cross, 752-756). In August 1966,
Kaufman wag advised that the Sommer application
was approved by the New York City Planning Com-
mission.
THE RESPONDENT (BIOGRAPHICAL SKETCH)
The respondent was born on August 22, 1928
in Manhattan, married in 1955, and has four child-
ren. He attended the College of the City of New
York and graduated cum laude in 1949; he graduated
from the New York University Law School in 1952.
Thereafter, he served for two years in the Korean
War and was discharged in 1954. In June 1954, he
was admitted to the Bar. During that year he was
employed as a law clerk by the law firm of Demov &
Morris; then in 1955 he worked one year for Harry
Lipsig, Esq., following which he was employed by
the law firm of Fallek & Connolly in Brooklyn,
N.Y., which was engaged in the practice of "negli-
gence" cases. Between 1952 and 1956, he attended
Brooklyn Law School, at night, and received a
Master's of Law Degree (Respondent, 863-869).
In May of 1956, the law firm of Fallek & Con-
nolly ceased to operate. This was the result of
an investigation and prosecution that was conducted
by the District Attorney of Kings County arising
out of, or in connection with, an investigation
by a committee, known as the Arkwright Committee,
into the solicitation of negligence cases by law-
yers in Kings County. Respondent also became in-
volved in that investigation which led to the
-50-
oy ae Pe OPE eet
institution of disciplinary proceedings against
him. In consequence of those proceedings, res-
pondent was suspended in May 1960 for a period of
two years by the Appellate Division, Second De-
partment (Respondent, 871-874). In September
1962, he was readmitted to the practice of law
and he then became a member of the law firm of
Wagner & Olitt at 32 Broadway, Manhattan. This
firmhad a general practice but handled mostly
commercial matters. Respondent remained with
that firm and an additional partner, Thomas De
Maio, until September 1965. Through other person-
nel changes made, the law firm is presently known
as Olitt & Klein, which handles mainly corporate
and commercial matters and is located in the Pan-
American Building at 200 Park Avenue, in Manhattan.
CHARACTER WITNESSES
Supreme Court Justices Bentley Kassal and
Fritz Alexander testified as character witnesses
for the respondent. Judge Kassal testified that
he considered the respondent's reputation as excel-
lent and being "a very hard working, persevering,
sincere adversary who is honorable." Judge Alex-
ander, who was a classmate of the respondent in
law school and later worked with him in the same
office, stated that "he enjoys an excellent repu-
tation for legal scholarship, diligence and dedi-
cation to his undertakings and tasks."
Several other witnesses likewise testified
that his reputation for truthfulness and veracity
and professional competence was of the highest.
One of his clients put it this way. "His integ-
rity is absolutely beyond reproach."
THE FINDINGS OF THE PETITIONER'S CHARGE
Whatever contradictions may appear in the
testimony given at the hearings before me, the
=§le
evidence is quite clear that the respondent lent
himself to a project on behalf of his client,
which his mature judgment should have at least
forewarned him was fraught with potentially im-
proper if not illegal conduct for an attorney.
What Kaufman initially asked respondent to
do for him was, using respondent's words, "ask
around and see if a campaign could be mounted,"
and also "to ask around and see if there is some-
thing that can be done to block or delay the
Sommer application for a zoning variance" (Respon-
dent, 926; Respondent --'cross, 1110). At that
time, respondent was told by Kaufman that he had
his "own people who can try to block it and delay
it," and that he was taking his "own procedures”
to attempt to fight and block this (Respondent --
cross, 1111). What Kaufman was asking respondent
to do was no small request. The testimony does
not show that respondent tried to have Kaufman
define clearly or limit precisely what he had in
mind for the respondent to do.
Respondent undertook this open-end type of
assignment and contacted, among others, Ralph Ely-
acher, who he knew was not a lawyer, and discussed
Kaufman's request with him. He did not ask Ely-
acher to recommend a lawyer who had expert know-
ledge in the field of zoning variances. Elyacher,
after considering the problem, told respondent he
could help Kaufman but it would cost money and he
didn't want Kaufman to know that he was involved.
When respondent wanted to know what it would cost,
Elyacher handed respondent a schedule of proposed
payments to be made by Kaufman which required a
down payment and then periodic payments depending
on the number of months that action would be de-
layed in the processing of the Sommer application.
Furthermore, when respondent inquired as to what
would be done and how the delaying action would
be accomplished, he was told not to ask questions
-52-
and "That's for me (Elyacher) to know how I do
these things. . ." (Respondent, 930-931).
When respondent testified before the grand
jury in 1968 in connection with an investigation
conducted by the District Attorney of New York
County, relating to this matter, he testified
as follows:
"Q. Let us clear up one point, and
please answer this with a yes or no.
There is no question, is there — with-
drawn. You knew at the time what you
were doing for and on behalf of Melvyn
Kaufman was wrong, did you not? Yes or
no.
A. If you are asking that in the point
of time from the moment he first spoke to
me, my answer to you would be no, I didn't
recognize that there was anything wrong
at the moment he started. ,
Q. When did you recognize that there
was something wrong?
A. When I carried the message about
the money.
Q. About money?
A. Yes.
Q. So that would be at the beginning.
He said 'Can this application be delayed,'
and so on and so on?
A. No, please permit me to do it my
way. I felt it was wrong when Ralph
said there was money involved.
Q. And that would be in the beginning
of 1966?
A. Right, but I didn’t encourage Mr.
Kaufman to say yes.
Q. Mr. Olitt, we will never get through --
A. That is very important to me. I never
said ‘Melvin Kaufman, you better do this.'
65%
Q. Did anyone suggest that you did?
A. Well, he makes it sound like that.
Q. I am merely asking you a question,
and you have got to answer these questions
or we will never get out today. It was
the beginning of January, 1966 that this
conversation that you had with Elyacher
asking about money took place?
A. Yes, sir.
Q. And you knew from that point on what
you were involved in was wrong; is that
right?
A. Yes, sir." (Respondent, 947-949).
The above testimony was read to respondent
by his attorney when he testified at the hearings,
and he was asked to explain "what was incorrect
about those answers." Respondent then attempted
to explain that when he gave that testimony in
1968, it was at a time when he had already been
informed by the district attorney as to what Ely-
acher did with some of the money he received from
Kaufman and how that money was passed on to others,
and the intended purpose thereof, and it was in
that "frame of reference" of what he knew in 1968,
that he spoke of the events that occurred in 1966
(Respondent, 949). I am not persuaded by that
explanation.
Be that as it may, it seems clear to me, aside
from the respondent's aforementioned testimony,
that when Elyacher requested the payment of certain
substantial amounts of money and he would not ex-
plain what action he planned to take or what he
was going to do with the money, respondent, as an
attorney with ter years of active experience in
1966, and whom I did not find to be a naive person
should reasonably have been put on notice and at
least should have suspected and have reason to
believe that some irregular, improper or illegal
conduct might be involved. Instead of insisting
aS$4=
upon receiving a straightforward explanation from
Elyacher of just what action he contemplated tak-
ing, respondent was content to accept Elyacher's
refusal to divulge the course of his conduct or
the means he intended to employ in the situation.
It would appear that respondent felt it was suf-
ficient for him to turn his back and adopt a
know-nothing posture which he thought would in-
sulate and protect him from any reverberations of
possible acts of illegality or impropriety. The
fact remains that respondent did not withdraw or
attempt to withdraw from this questionable trans-
action, but proceeded therewith and delivered the
schedule of payments to Kaufman, for his consid-
eration.
When respondent met with Kaufman, following
his meeting with Elyacher, there were three signi-
ficant phases in their discussion: the first dealt
with the report by respondent of the inquiries he
had made and the fact that he learned that some-
thing could be done; according to Kaufman's testi-
mony, respondent said that "he was able to make
contact with people in the administration, via
others, that he knew of, or knew or something
along those lines . . ." (Kaufman, 20); second,
respondent delivered and explained to Kaufman the
schedule of payments which he received from Ely-
acher; and third, there was some discussion as to
the amount requested and how the payments were to
be made. Here, again, according to Kaufman's
testimony, it was respondent who told him that the
people with whom he was dealing wanted cash (Kauf-
man, 31). On the other hand, respondent testified
that it was Kaufman who, for reasons which he ex-
plained, advised respondent that he would make the
payments in cash (Respondent, 936). It is my
opinion that it was understood by all that the
payments would be made in cash.
Even if respondent's suspicions and profes-~
sional concerns were not sufficiently aroused when
-55-
he previously received Elyacher's request for
money, it is difficult to accept respondent's
assertion that he had no reason to assume, be-
lieve or expect that anything improper might be
done in achieving Kaufman's objective after his
discussion with Kaufman, when he knew that the
money would be paid in cash and also the secretive
manner in which the down payment of $10,000 (at
some other point stated to be $17,500) was going
to be delivered (Respondent -- cross, 1054).
Even at this state of the arrangements, ac-
cording to the evidence, respondent did not obtain
further information from Elyacher as to how the
money was to be used, nor did he offer any protest
or indications of an intention to withdraw from
the project. To the contrary, he continued will-
ingly to act as Kaufman's intermediary throughout
the entire transaction.
Interestingly, when respondent was cross-
examined before me regarding this aspect of his
conduct in this matter, his attention was directed
to the following testimony which he previously had
given before the petitioner's Grievance Committee
in 1973:
""Q. You also used the phrase "involved
in an impropriety."
"Now, are you suggesting that the im-
propriety was Elyachers and not yours
because you did not know precisely what
he was going to do with $17,500 in cash?
Witness: ‘No, its my impropriety, my
impropriety.
"But the same way I answered Miss
McDonald's question by saying, please
don't push me to have to say the extra
part of it. You know the knowledge,
the participation, my impropriety, my
=$6~
conduct, wrongful and questionable, not
skirting it.
"But only asking -- view the whole
scene, the whole scene, sit there with
me and then figure, well, I'm supposed
to turn, according to the Canons, and
tell Mel Kaufman in his den, when other
incidents occur I'm supposed to say to
him... I'm supposed to deter him.
"I read them carefully. I'm supposed
to discourage him, I'm supposed to tell
him "vou should not get involved." It
sounds bad, and I suppose if the Canon
says -— he continues and wants to go
along with it, no matter what I have
just said to deter him, [I'm supposed to
terminate the relationship.
"I didn't do that, if the Canon says
it, and that's what I was supposed to do,
sir, but I didn't do that.'"
"Q. Now, having heard those questions and
answers, were you asked those questions and
did you give those answers?
A. Yes, sir." (Respondent -- cross, 1054-
1055)
There is no evidence that any of the money
which Kaufman gave Elyacher through respondent
eventually reached any public official in the
New York City Planning Commission. There is
evidence, however, that the sum of $5,000 in cash
was divided among Freyberg, Marcus, Itkin and
Oscar Bloustein. The respondent did not know any
of these individuals. But that is not important
here. What is important and determinative is the
fact that respondent, under the aforementioned
circumstances believed, or reasonably should have
believed and expected that the arrangements which
respondent made on behalf of Kaufman with Elyacher,
might well include the use of Kaufman's money in
o$ Ja
an attempt to influence the decisions of a public
official or public officials in delaying or block-
ing the Sommer application. A substantial amount
of cash was being turned over by respondent to
Elyacher and more was to come. It was not suffi-
cient for respondent to have accepted and have
been put off by Elyacher's reply, "=-do not ask
me Or press me or pressure me, I don't want to
discuss it with you, I don't want to tell you how
I'm going to do it, -=" (Rebpondent, 930-931);
"Don't ask me who, don't ask me anything about
the matter. You know, Jerry, I love you like a
brother; you're a buddy of mine but I don't want
you to ask me any questions" (Grand Jury Trans-
cript, 472). As an attorney, he was under a duty
to pursue it, and insist that he be informed how
Elyacher, who was not a lawyer, was going to use
the money, what he was going to do for Kaufman
and how he was going to accomplish it. Absent
such information, he was under a duty to terminate
the relationship.
The respondent himself acknowledged and ex-
pressed this same view when, in a letter of April
26, 1973, which he wrote to the Grievance Conm-
comittee, he said, in part:
"Sincerely and admittedly mv instinct
and experience suggested that Elyacher
might be involved in some kind of im-
propriety to accomplish a delay."
(Respondent -- corss, 1058-1061)
CONCLUSION
The petition herein alleges that the respon-
dent violated Canons of the Canons of Professioal
Ethics (15, 16, 29 and 32). Pursuant to the ap-
plicable provisions of those Canons, and on the
evidence before me, I find that the petitioner's
charge has been sustained.
-58-
II. THE RESPONDENT'S DEFENSE OF LACHES
At the hearings, respondent urged that his
defense of laches (Third Affirmative Defense) was
an issue that I should consider and resolve. The
petitioner argued that this issue was disposed of
by the decision and order of this Court, of Decem-
ber 3, 1976. I, too, am of the view that this
Court considered and resolved this question in
connection with the respondent's motion to dismiss
the petition and for summary judgment, particularly
because the Court's order did not direct me to look
into this matter as it did with respect to another
of respondent's defenses.
However, at the hearings, petitioner's attor-
ney moved to strike from the record all of the
testimony presented by respondent relating to
laches. I stated that I would take that motion
under advisement and that I would deal with it in
my report (Respondent, 986). Thereafter, as that
evidence continued to be put in the record, petit-
ifoner's attorney did not press his motion but, in
fact, consented to the admission of certain evi-
dence on laches offered by respondent, I shall per-
mit the said evidence to remain in the record for
what it's worth and I shall briefly comment there-
on.
Although there is no statute of limitations
applicable to disciplinary proceedings, it is true
that considerable time has elapsed since January
30, 1970 when petitioner claims it first learned
of respondent's alleged improper conduct. It was
not until January 11, 1973 that petitioner noti-
fied respondent that it was investigating him and
charges of his alleged professional misconduct
were served on him on May ll, 1973. The petition-
er has attributed this delay of three years to its
desire to await the outcome of the Freyberg pros-
ecution and to internal reasons. The record shows
that one of the respondent's previous attorneys
stipulated that the delay since May 11, 1973 is
not attributable to petitioner (Respondent, 1002).
From May 11, 1973 to the present, the time has
been taken up with a number of legal moves by
respondent directed against the petitioner's con-
tinuance of the instant proceedings and the hear-
ings before the Grievance Committee.
With respect to the charge against respondent,
as contained in the petition, both sides have had
full access to all witnesses who had any material
evidence to offer, except certain persons who
have died in the interim and, therefore, were not
available. According to respondent's post-hearing
brief,one possible witness, William Kaufman, father
of Melvyn Kaufman, who might have been called by
him, died on October 26, 1976. I do not believe
that his testimony, as indicated by respondent,
would have had any effect on my findings herein.
Petitioner has pointed out in its post-hearing
brief that William Kaufman was not called as a
witness by respondent during the Grievance Com-
mittee hearings. Another possible witness, Murray
Boxer, died in 1971, which was at a time when the
Grievance Committee was still pursuing its investi-
gation of respondent.
As to the claim by respondent that assistant
district attorney Rogers allegedly promised that
he would not initiate disciplinary proceedings
against respondent or refer same to petitioner,
one witness, William Kleinman, who would have been
called by respondent, died in April 1969. This
was not long after respondent testified before the
grand jury and before petitioner learned of res-
pondent's alleged misconduct. Nevertheless, Klein-
man's law partner, Mark Landsman, who was fully
familiar with all the facts and who had been pre-
sent at all pertinent meetings with assistant dis-
-60-
trict attorney Rogers, was available and testified.
Another possible witness, Morris Marks, who was
employed as an accountant in the district attor-
ney's office in New York County, died on January
6, 1973, which appears to be four days before the
petitioner notified respondent of the proceedings
against him. At the hearings the respondent at-
tempted to testify regarding an alleged conver-
sation he had with Marks at the district attorney's
office subsequent to the time that the aforesaid
alleged promise was made. The petitioner moved
to strike this testimony on the ground that it was
hearsay. I reserved decision at that time. Upon
reviewing the aforesaid testimony regarding res-
pondent'’s alleged conversation with Marks, I am
not satisfied that the said conversation, if had,
was within the actual presence of Rogers, or that
he heard it, and therefore I find that this testi-
mony was hearsay and should be excluded (Respon-
dent, 136-139).
While obviously the proceedings in this mat-
ter have been for various reasons protracted for
an unduly long period of time, I do not believe
that the respondent has been préjudiced to the
extent that these proceedings should be barred.
Accordingly, in consideration of all the circum-
stances, it would seem to me that the petitioner
should not be estopped from prosecuting this mat-
ter.
III. THE ALLEGED PROMISE MADE TO RESPONDENT
BY THE DISTRICT ATTORNEY OF NEW YORK
COUNTY
As was previously mentioned, the respondent
has urged in the Fifth Affirmative Defense in his
answer that the instant proceedings should be dis-
continued on the ground that:
~61<
"Respondent's testimony before the Grand
Jury upon which these proceedings are pre-
dicated was obtained on the explicit as-
surance and affirmative representation of
the District Attorney that the matter would
net be referred to petitioner for disciplin-
ary proceedings and only after the respondent
was granted transactional immunity.
"That on or about February 4, 1971, the
District Attorney, in breach of his agree-
ment with respondent applied to the Supreme
Court, New York County, for release of the
minutes of respondent's Grand Jury testi-
mony and obtained an order releasing the
same to petitioner.”
The Court has directed that I shall consider
the effect of this promise, if in fact such prom-
ise was made (Palermo, et ano, v. Warden, Green
Haven State Prison, et al., U.S. Court of Appeals,
2nd Cir., November 1, 1976).
THE EVIDENCE
The respondent testified as follows: that
during the summer or fall of 1968, he received a
telephone call from assistant district attorney
Frank J. Rogers of New York County, and was advised
that Mr. Rogers wanted to speak to him in connec-
tionwith a pending investigation (Respondent, 117-
118).* Respondent was also served with a subpoena.
Shortly thereafter, respondent, being upset about
this development, and knowing that Kaufman and Ely-
acher had been called down to the district attor-
*The numeral references here are to the page num-
bers of the transcript of the minutes of the first
part of these hearings which pertained only to the
question of the alleged promise.
-62-
ney's office, attempted to reach "Col." William
Kleinman, an attorney of the law firm of Kleinman
and Landsman, who had assisted respondent in 1956
in his prior disciplinary problem. Although
Kleinman was at that time attending a party at
the home of his son-in-law and partner, Mark
Landsman, in Atlantic Beach, Long Island, respon-
dent and his wife felt that the situation was
important enough to go out there to see Kleinman.
When he met Kleinman, respondent told him about
the subpoena he had received from the district
attorney and what the matter involved; after he
finished describing the matter to Kleinman, he
then asked him "to please help me (respondent)
protect my license to practice, that I felt it
was going to be threatened . . ."; respondent
also tried to explain that he didn't believe he
committed any kind of wrongful or unlawful act
(Respondent, 119-121).
Respondent further testified that subsequent-
ly he, together with his attorneys, Kleinman &
Landsman, went to assistant district attorney
Rogers’ office on several occasions. On or about
September 18, 1968, respondent's attorneys met
with Rogers and a detective in his office; the
respondent was not present during that conference
but sat outside the office on a bench in an ante-
room; respondent had no conversation with Rogers
on that day (Respondent, 124-125). On the follow-
ing day, respondent again, together with his attor-
neys, went to Rogers' office. Once again, res-
pondent did not go into Rogers' office to attend
the meeting, but remained outside on the bench.
According to respendent, after that meeting was
concluded, his attorneys came out of the room
with Rogers behind them and his attorney, Lands-
man, explained to him that he (respondent) "had
been granted immunity" with regard to his testi-
mony and that "he (Landsman) had received (a)
promise from Mr. Rogers ay I (respondent) would
«$3
have no bar problems." Kleinman, at that point,
said to respondent, "You understand, Jerry, that
you must testify truthfully and that's the only
way there will be any problem, and you will not
have any bar involvement." Then Kleinman turned
to Rogers and he said, "Is that right, Frank?" --
And Frank said, 'Yes, Colonel’ (Respondent, 127,
140).
Landsman testified on this point, as well
as about his and Kleinman's conversation with
Rogers on that day, as follows: that the con-
versation with Rogers about the immunity "was
substantially longer" than with regard to the
disciplinary problem; that he had indicated to
Rogers that he was not concerned that respondent
had committed any crime but that his primary con-
cern was that respondent had a prior disciplinary
problem and he wanted to make sure that respondent
did not have any additional disciplinary problem;
that Rogers gave him "the assuranep that he would
not initiate or refer this matter over"; that he
then went outside and brought the respondent in;
and in the presence of Kleinman, Rogers and a de
tective, he repeated what Rogers had agreed with
him; that Rogers was standing there nodding his
head but "He did not say -- he didn't repeat it.
I was talking to Olitt"; also, Landsman did not
"recall whether he (Rogers) confirmed it by
nodding his head or by saying anything --," and
he did not recall "him (respondent) saying any-
thing at that time'’ (Landsman, 67-70).
When Landsman returned to his office that
day, following the aforesaid meeting with Rogers
and the others, he prepared a memorandum for his
file. That memorandum was introduced into evi-
dence by petitioner (Exhibit 3) and read as
follows:
=$h-
"9/19/68
At. A.D.A. Frank Rogers office
ABT. 11:30 A.M. —
Rogers interviewed Olitt in Presence of
MAL, WWK, and Det. Trefcer
Olitt Promised Immunity if He Testified
Before GD Jury --"
Rogers was called as a witness by the petit-
ioner. He admitted that he had several meetings
with Landsman, Kleinman and respondent; at the
first meeting with Landsman (he could not recall
whether Kleinman was present but he knew that
respondent remained outside), Landsman wanted to
know if he would be willing to ask the grand jury
whether they would grant immunity to respondent,
and he said "yes"; at the second meeting when
Kleinman came in with Landsman, they again dis-
cussed this matter and they then brought respon-
dent into the office and Rogers told respondent
that he would ask the grand jury to grant him
immunity (Rogers, 192); Rogers spoke to Landsman
and respondent on a number of occasions, both
before and after respondent testified before the
grand jury, but at no time did he promise respon-
dent or his attorneys that respondent "would not
be subjected to professional discipline by reason
of matters that he might have disclosed in his
testimony"; neither did he promise not to initiate
any professional disciplinary proceedings nor that
he would not refer the matter to the Grievance
Committee (Rogers, 194-195, 222-223).
During cross-examination, Rogers admitted
that respondent's attorneys, in their conferences
in September 1968, may have brought up the matter
of respondent's possible disciplinary problem, but
at S<
that he "absolutely" made no commitment because
he "couldn't" (Rogers, 207-208); that a standard
answer js usually given in such situations, to
wit, that the Bar Association would be advised of
the cooperation given by the attorney involved;
Rogers testified that in his entire career as an
assistant district attorney covering the period
of 14 years, he had no recollection of ever having
made such a promise as is claimed here by respon-
dent (Rogers, 225-226).
THE FINDINGS
An oral promise, allegedly made by a district
attorney, that is beyond his power and authority,
and is in contravention of his official duties,
and affects the administration of justice and the
public interest, requires most careful scrutiny.
What’ then is the nature and probity of the evi-
dence submitted to support the respondent's claim?
In the first place, this alleged promise, al-
though claimed to have been made to respondent's
attorneys on September 19, 1968, in their private
conferences with Rogers, was never expressed or
repeated by Rogers directly to respondent, or in
his presence, either during the aforesaid confer-
ences or at any of the several times during which
respondent saw Rogers thereafter while testifying
before the grand jury. At most, Rogers was said
to have nodded his head, or respondent heard him
say "yes" when Kleinman, after the second confer-
ence, told respondent in somewhat general and
indefinite terms that he would have no Bar invol-
vement (Respondent, 127-132).
Furthermore, what is especially noteworthy
is the fact that although Landsman testified that
during the aforementioned conferences in speaking
to Rogers, his primary concern was "to make sure
that (respondent) did not have any additional
-66-
disciplinary problem" and he thereupon allegedly
obtained such an assurance from Rogers, yet when
Landsman returned to his office that same day and
make a memorandum of his discussion with Rogers,
all that was mentioned was that respondent was
"promised immunity" if he testifies before the
grand jury. Nothing at all was noted about
Rogers’ alleged promise not to refer the matter
to petitioner.
In addition, in January i973, Landsman re-
ceived a letter from respondent, advising him
that disciplinary proceedings were contemplated
against respondent as a result of the 1968 testi-
mony before the grand jury. Landsman had occasion
to see and did see Rogers after that date, and
certainly Landsman knew where he could reach
Rogers, but at no time did Landsman mention or
discuss with Rogers the subject of Rogers’ alleged
promise (Landsman, 72-79). There is no testimony
that respondent requested Landsman to speak to
Rogers about this alleged promise after he re-
céived the aforesaid letter.
The respondent's answer to the petition as-
serts in his Fifth Affirmative Defense that Rogers
breached his agreement in that on or about Febru-
ary 4, 1971, the district attorney applied to the
Supreme Court, New York County, for an order re-
leasing the respondent's grand jury testimony to
petitioner. According to Landsman's testimony,
this action, in itself, by the district attorney
would not appear to constitute a breach of this
agreement.
On this point, Landsman testified as follows:
"Q. You aren't saying, are you, that
Mr. Rogers told you that he would refuse
to comply with a request to turn the
Grand Jury minutes over to the Grievance
-67-
Committee if he was requested to do so
by the Grievance Committee?
A. No.
Q. You aren't saying, are you, that
Mr. Rogers told you if the Grievance
Committee asked him for information he
would refuse to give that information?
A. Assuming that the original basis for
it didn't come from hin.
Q. Yes, assuming that.
A. Then he would be honoring his
commitment." (Landsman -- cross, 81)
Just to round out this aspect and for back-
ground, brief reference will be made to the testi-
mony which shows how these disciplinary proceed-
ings commenced.
In November 1969, an article in The New York
Times, which reported that an unnamed commissioner
in New York City was implicated in an investiga-
tion by the District Attorney of New York County,
was brought to the attention of John G. Bonomi,
chief counsel to the petitioner's Greivance Com
mittee. On or about December 1, Bonomi telephoned
Rogers and inquired as to who was the unnamed com-
missioner and whether he was a lawyer, because the
newspaper article did not so indicate. Rogers told
Bonomi that the commissioner mentioned was Michael
Freyberg and that he was a lawyer and there was
another lawyer involved who had been granted im-
munity, but he could not disclose his name at that
time (Bonomi, 95-96). Subsequently, on January
30, 1970, two months later, Bonomi saw an article
in The New York Times which dealt with the same
aforementioned investigation and, in that article,
respondent's name was mentioned; he then opened an
office card on the respondent so that an appropri-
ate inquiry could be made (Bonomi, 99-101).
=68=
It is the contention of the petitioner, in
addition to the denial that the alleged promise
was made by Rogers, that even on the basis of
these facts, and Landsman's aforesaid testimony,
it cannot be claimed that Rogers initiated or
referred this matter to the petitioner.
Returning now to further consideration re-
garding the alleged promise. Whereas the promise
made to respondent's attorneys and to respondent
that respondent would be granted immunity was
personally and definitely confirmed by Rogers
and put on the record of the proceedings of the
grand jury even before respondent gave any testi-
mony, there is nothing at all in writing or in
any other convincing from to show to my satis-
faction that Rogers had, in fact, made the alleged
promise here in question. As stated above, res-
pondent, himself, never heard Rogers express the
promise, nor did he ever attempt to obtain con-
firmation from Rogers about it, particularly since
he claims to have been so concerned about that
problem; and Landsman's testimony at the hearings
is not substantiated by his own written memorandum.
There is one further item. The evidence
shows that on April 27, 1973, at the request of
one of respondent's prior attorneys, Rogers wrote
a letter to Bonomi in which, among other things,
he advised that, "It was in part due to Mr. Olitt’s
extensive cooperation that the District Attorney
secured indictments against Ralph Elyacher and
Melvin Kaufman." He also said he was calling
these facts to Bonomi's attention for "whatever
action you deem appropriate." (Respondent's
Exhibit "11") This was in accord with the usual
practice in the district attorney's office of
sending such a letter to the Grievance Committee
when an attorney has cooperated in an investi-
gation (Rogers -- ‘cross, 230).
-69-
Rogers also testified that when he received
such request from respondent's then attorney,
according to his recollection, the said attorney
made no reference to any promise which Rogers
allegedly made to respondent (Rogers -- redirect,
240).
CONCLUSION
In view of the foregoing, I find that the
respondent has failed to prove by a fair prepon-
derance of credible evidence that the District
Attorney of New York County, by his assistant,
Frank J. Rogers, made the promise to respondent
or his attorneys as is alleged herein. There-
fore, the ruling in the Palermo case is not
available to respondent.
RECOMMENDATION
This has been a very long and unusual case.
It is now 1l years since the underlying events
took place. It is 9 years since these events
first came to light. The respondent and his
family have undoubtedly suffered great mental an-
guish during this entire period. In addition,
this has been a severe drain on his financial
resources by way of loss of business as well as
actual expenditures of approximately $100,000 for
legal fees, thus practically depleting all of his
and his wife's life savings.
In my judgment, the underlying reason for
respondent's entanglement in the present situation
was his overriding desire to please an important
client and thereby enhance and improve his pro-
fessional relationship with the client. Unfortun-
ately, this so warped his judgment that he failed
to see the hazards of his undertaking. For this
he has already paid an enormous price and penalty.
-70-
Although I have stated as my view that the
delay herein (to which both parties contributed)
did not estop petitioner from pursuing these pro-
ceedings, I believe that the long time elapsed is
a mitigating factor that should be considered by
the Court on the question of possible discipline
of the respondent. As this Court said in the
Matter of Shea, 274 App. Div. 18 (lst Dept., 1948)
at page 19:
"These charges relate to matters occurring
more than ten years ago, and were apparently
largely the result of an opinion honestly,
even though mistakenly, held. The investi-
gations arising out of the charges made had
been pending for many years. The protracted
pendency of the proceedings, the publication
and humiliation connected therewith have
been in themselves a severe form of punish-
ment."
Even though circumstances are different, the
principle expressed above is pertinent here.
Furthermore, the District Attorney of New
York County, in recognition of the meaningful
assistance by the respondent, wrote a letter to
petitioner's chief counsel, advising him of res-
pondent's “extensive cooperation."
Finally, it appears from the testimony pre-
sented by respondent and from a number of witnes-
ses whom he called, that he has conducted himself
honorably, as an attorney, and has rendered some
useful legal services, charitable and pro bono,
which reflect favorably upon himself as well as
the legal profession.
=Fin
iia aia a ik i a an
For these reasons, I respectfully recommend
that due consideration for leniency be extended
to the respondent.
Respectfully Submitted,
JACOB GRUMET
Referee
ee rt ne ee a
New York
Dated: October 25, 1977
a
—
oJ2~
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.