Petition — Fayer v. Joint Bar Ass'n Grievance Committee, Tenth Judicial District

IN THE } MICHAEL R@DAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1978

NW 8-851

ALFRED FAYER,

Petitioner,

v.

JOINT BAR ASSOCIATION GRIEVANCE

COMMITTEE, TENTH JUDICIAL DISTRICT,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO REVIEW

THE JUDGMENT OF THE APPELLATE DIVISION

OF THE NEW YORK SUPREME COURT

Joun S. Martin, Jr., Esq.

1290 Avenue of the Americas

New York, New York 10019

Counsel for Petitioner

Otto G. OBERMaIER

Carotyn H. HeENNEMAN

Of Counsel

TABLE OF CONTENTS

I eae Cec lecanccecccces

ITS Phare Go Gd cade av b0s/e sd odes coker’

i A SY SA SAO ee a a

Constitutional and Statutory Provisions Involved ..

REESE SES Se eae eo

Reason for Granting the Writ ....................

The Failure of the State of New York to Provide for

Any Type of Hearing Prior to the Summary

Automatic Permanent Disbarment of an Attor-

ney Convicted of a Federal or State Felony

Violated Petitioner’s Right to Due Process Guar-

anteed by the Fourteenth Amendment .........

Ne ebeseceue

AppPenpix A—Decision of the New York Supreme

Court, Appellate Division, Second Department,

— A.D.2d ——, 406 N.Y.S.2d 493 ...........

Appenpix B—Orders of the New York Supreme

Court, Appellate Division, Second Department

EE eae Dae GAP ola vie a 6 uis'sies Scie wecanes

Appenpix C—Decision and Order of the Court of

Appeals of the State of New York (September

es cc cece weccecescenerce

Appendix D—“Suggested Guidelines for Rules of

Disciplinary Enforcement”, Standing Committce

on Professional Discipline of the American Bar

os ca wuewevecseuscaced

Al

A3

A8

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No.—

,*

wv

ALFRED Fayer,

Petitioner,

v.

Joint Bar AssociaTIon GRIEVANCE CoMMITTEE,

TentH Jvupiciau District,

Respondent.

+.

a

PETITION FOR A WRIT OF CERTIORARI TO REVIEW

THE JUDGMENT OF THE APPELLATE DIVISION

OF THE NEW YORK SUPREME COURT

Alfred Fayer prays that a writ of certiorari issue to re-

view the judgment of the Appellate Division of the New

York Supreme Court entered in this case on May 19, 1978.

Opinions Below

The decision of the Appellate Division of the New York

Supreme Court, Second Department, is reported at ——

A.D.2d ——, 406 N.Y.S.2d 493 (1978), and is reprinted in

Appendix A. The orders entered by the Appellate Division

are reprinted in Appendix B. The decisions and order of

the New York Court of Appeals dismissing petitioner’s ap-

2

peal and denying his motion for leave to appeal to that

court are reprinted in Appendix C.

Jurisdiction

The judgment of the Appellate Division of the New York

Supreme Court, Second Department was entered on May

19, 1978. The orders of the Court of Appeals denying

leave to appeal and dismissing the appeal to that court

were entered on September 1, 1978. The jurisdiction of

this Court is invoked under 28 U.S.C. § 1257(3).

Question Presented

Whether the failure of the State of New York to provide

for any type of hearing prior to the summary automatic

life-long disbarment of an attorney convicted of a federal

felony violates petitioner’s right to due process guaranteed

by the Fourteenth Amendment?

Constitutional and Statutory Provisions Involved

Fourteenth Amendment, United States Constitution:

‘«* * * No State shall * * * deprive any person of life,

liberty, or property, without due process of law * * *.’’

Section 90(4) of the New York Judiciary Law:

‘*4. Any person being an attorney and counsellor-

at-law, who shall be convicted of a felony, shall, upon

such conviction, cease to be an attorney and counsellor-

at-law, or to be competent to practice law as such.

‘*Whenever any attorney and counsellor-at-law shall

be convicted of a felony, there may be presented to the

appellate division of the supreme court a certified or

exemplified copy of the judgment of such conviction,

and thereupon the name of the person so convicted

ee

3

shall, by order of the court, be struck from the roll of

attorneys.’’

Statement

Petitioner was duly admitted to the Bar of the State of

New York in 1942. On August 19, 1977, a judgment of

conviction after trial was entered against him in the United

States District Court for the Eastern District of New York

on four counts of making false declarations, in violation of

18 U.S.C. § 1623. The alleged false declarations arose from

his testimony at a prior non-jury trial in the same court, at

the conclusion of which petitioner was acquitted. Imposi-

tion of sentence on the false declarations conviction was

suspended on Counts 1, 2 and 3 and petitioner was placed

on probation for one month; on Count 4 he was sentenced

to pay a $5,000 fine.

The Appellate Division of the New York Supreme Court

automatically disbarred petitioner for life as of the date

of his conviction, pursuant to Section 90(4) of the New

York Judiciary Law. No prior notice was given or hearing

held at which petitioner was afforded an opportunity to

be heard in mitigation, nor is one provided by statute.

Subsequently, on March 15, 1978, respondent moved in the

Appellate Division to strike petitioner’s name from the roll

of attorneys. Although petitioner requested a hearing and

submitted papers in opposition challenging the constitu-

tionality of Section 90(4) of the Judiciary Law and pre-

senting mitigating circumstances, no hearing was held and

an order was summarily entered on May 19, 1978, striking

petitioner’s name from the roll.*

Petitioner then sought review of his disbarment in the

New York Court of Appeals, both as an appeal as of right

* Because of an error in the description of petitioner's con-

viction in the May 19th order, said order was amended nune pro

tunc by the Appellate Division on June 9, 1978.

4

and by motion for leave to appeal. The sole issue raised

on appea! was the constitutionality under the Fourteenth

Amendment to the United States Constitution (and the

equivalent provisions of the state constitution) of the auto-

matic disbarment provision for attorneys convicted of a

felony, contained in Section 90(4) of the New York Judi-

ciary Law—the identical issue raised in the instant peti-

tion. Specifically, petitioner argued that (1) the failure to

afford an attorney a hearing prior to disbarment for life

with no right to reinstatement violated the Due Process

Clause, and (2) the disciplinary provisions governing attor-

neys as compared with all other New York licensed pro-

fessionals constituted separate and unequal treatment in

violation of the Equal Protection Clause. By decision and

order dated September 1, 1978, the Court of Appeals denied

leave to appeal and dismissed the appeal, on the ground

that “no substantial constitutional question is directly in-

volved.” This case is thus properly before the Court on

certiorari to the Appellate Division of the New York Su-

preme Court. Interstate Circuit, Inc. v. Dallas, 390 U.S.

676, 678 n.1 (1968), Michigan-Wisconsin Pipe Line Co. v.

Calvert, 347 U.S. 157, 160, reh. den., 347 U.S. 931 (1954),

Hammerstein v. Superior Court, 341 U.S. 491, 492 (1951),

American Ry. Exp. Co. v. Levee, 263 U.S. 19, 20-21 (1923),

Sullivan v. Texas, 207 U.S. 416 (1908).

Reason for Granting the Writ

The failure of the State of New York to provide for

any type of hearing prior to the summary automatic

life-long disbarment of an attorney convicted of a

federal felony violated petitioner’s right to due process

guaranteed by the Fourteenth Amendment.

The extreme sanction of disbarment has been consistently

recognized by this Court as a punishment or penalty im-

posed on the lawyer. In re Ruffalo, 390 U.S. 544, 550, reh.

5

den., 391 U.S. 961 (1968), Spevack v. Klein, 385 U.S. 511,

515 (1967), Ex parte Garland, 4 Wall. 333, 380 (1866).

Given the “quasi-criminal” nature of the proceedings, an

attorney subject to disbarment is entitled to procedural

due process, since the sanction of disbarment will destroy

his reputation and livelihood. In re Ruffalo, supra. Al-

though the power to control the practice of law and to dis-

cipline its practitioners rests primarily with the States,

that power “cannot be exercised so as to abrogate federally

protected rights”. Johnson v. Avery, 393 U.S. 483, 490 n.11

(1969). Before a state can exclude a person from practic-

ing law, “the requirements of due process must be met”.

Willner v. Committee on Character and Fitness, 373 U.S.

96, 102 (1963).

Fundamental to the concept of due process is the right to

be heard prior to decision, particularly when a person’s

good name and professional license are at stake. Wolff v.

McDonnell, 418 U.S. 539, 558 (1974) ; Roe v. Wade, 410 U.S.

113, 219 (1973) (Douglas, J. concurring) ; Board of Regents

v. Roth, 408 U.S. 564, 573 (1972). In numerous instances

significantly less serious than disbarment for life, this

Court has afforded citizens the basic due process rights here

denied petitioner. See, ¢.g., Goss v. Lopez, 419 U.S. 565

(1975) (suspension of students from school) ; Perry v. Sin-

dermann, 408 U.S. 593 (1972) (teachers with implied tenure

may not be terminated without due process) ; Morrissey v.

Brewer, 408 U.S. 471 (1972) (revocation of parole) ; Bell v.

Burson, 402 U.S. 535 (1971) (suspension of driver’s li-

cense) ; Goldberg v. Kelly, 397 U.S. 254 (1970) (termination

of relief payments). As this Court stated in Theard v.

United States, 354 U.S. 278, 282 (1957):

“Disbarment being the very serious business that it is,

ample opportunity must be afforded to show cause why

an accused practitioner should not be disbarred.”

. The statute under which petitioner was disbarred—Sec-

tion 90(4) of the Judciary law—mandates automatic sum-

6

mary disbarment in all cases where an attorney has been

convicted of a felony, irrespective of the seriousness of the

felony. Matter of Chu, 42 N.Y.2d 490, 398 N.¥Y.8.2d 1001, 369

N.E.2d (1977). For example, the New York Court of Ap-

peals recently upheld the automatic disbarment of an at-

torney convicted of assaulting a federal officer, arising out

of what the sentencing judge described as a “kindergarten

shouting and pushing match” between the attorney and

federal agents in the hallway of a federal court. Matter of

Thies, —— N.Y.2d —— (October 19, 1978) (No. 389). At-

torneys subject to the summary provisions of Section 90(4)

have been held to be disbarred for life and not entitled

to reinstatement. Matter of Glucksman, 57 A.D.2d 205,

394 N.Y.S.2d 191 (1st Dept. 1977). Moreover, there is

no automatic right to appeal the automatic summary dis-

barment, and the or}y possible review is by leave of the

Court of Appeals or the Appellate Division, unless con-

stitutional issues are directly involved in the determination

below. By contrast, attorneys convicted of misdemeanors,

irrespective of their gravity, are entitled to at least one

hearing in mitigation and explanation prior to the imposi-

tion of discipline. Rule 603, First Department; Rule 619,

Second Department; Rule 806, Third Department; and Rule

1022, Fourth Department.

The statute’s automatic provisions fail to provide the

court with the needed facts to draw meaningful distinctions

which are the life-blood of any judicial system. Crimes are

not fungible, even those classified broadly as felonies; nor

does it follow that attorneys convicted of felonies should

be denied a hearing before imposition of discipline. The

bare record of conviction on which the disbarment is ex-

clusively premised cannot reveal whether, for example, the

crime involved moral turpitude, or if so, the degree of such

involvement. The lack of any hearing also leaves the court

ignorant of any substantial mitigating circumstances which

may be present. As this Court noted in a related context,

“In determining whether a person’s character is good,

7

the nature of the offense which he has committed mnst

be taken into account,” Schware v. Board of Bar

Examiners of New Mezico, 353 U.S. 232, 243 (1957).

Petitioner here was even denied oral argument. Herring

v. New York, 422 U.S. 853 (1975) (New York practice of

permitting the court in a non-jury criminal trial to deny

counsel the opportunity to give a summation held to be an

unconstitutional deprivation of right to counsel).

A statute which provides for disbarment under such cir-

cumstances, without notice or a hearing, is void as contrary

to the constitutional guarantee of procedural due process.

In re Ruffalo, supra, Charlton v. F.T.C., 543 F.2d 903 (D.C.

Cir. 1976), Matter of Jones, 506 F.2d 527 (8th Cir. 1974);

Burkett v. Chandler, 505 F.2d 217 (10th Cir. 1974), cert.

den., 423 U.S. 876 (1975); Nell v. United States, 450 F.2d

1090 (4th Cir. 1971); In re Echeles, 430 F.2d 347 (7th Cir.

1970) ; In re Crow, 283 F.2d 685 (6th Cir. 1960) ; Tedesco v.

O’Sullivan, 420 F.Supp. 194 (D.Conn. 1976).

The absence of the customary rudiments of due process

in the New York procedure is one of the reasons why no

other State’s disciplinary statutes provide for summary

automatic disbarment. California, for example, amended

its statute in 1955 to eliminate summary disbarment and to

substitute a statute requiring disbarment or suspension “ac-

cording to the gravity of the crime and the circumstances

of the case.” California Business & Professions Code, See-

tion 6102. See, In re Smith, 432 P.2d 231, 232-33 (1967).

The model American Bar Association disciplinary rules as

well do not provide for automatic summary disbarment

(Appendix D). Indeed, Rule 8 of this Court, which governs

the procedure for disbarring a member thereof, provides

the attorney an opportunity to be heard in mitigation prior

to disbarment. Significantly, if a State fails to afford due

process in its disciplinary proceedings, those proceedings

will not be recognized as an adequate predicate to disbar-

ment in this Court. Selling v. Radford, 243 U.S. 46 (1917);

In re Ruffalo, supra.

8

Clearly, New York’s uniquely automatic, summary and

permanent method of disciplining convicted attorneys is

violative of the Due Process Clause, as well as contrary to

the applicable decisions of this Court.

CONCLUSION

It is respectfully submitted that the petition for a

writ of certiorari should be granted.

November 21, 1978

Respectfully submitted,

Joun 8S. Martin, Jr., Esq.

Attorney for Petitioner

1290 Avenue of the Americas

New York, N. Y. 10019

Tel. (212) 489-1500

Orro G. OBERMAIER

Carotyn H. Henneman

Of Counsel

APPENDIX A

Decision of the New York Supreme Court, Appellate

Division, Second Department, —— A.D.2d

406 N.Y.S.2d 493.

>

v

In the Matter of ALrrep Fayver, an attorney

and counselor-at-law.

Tue Jorst Bar Association GrievaNce CoMMITTEE,

Tentu JupiciaL District,

Petitioner,

v.

AuFReD Fayer,

Respondent.

+

Supreme Court, Appellate Division,

Second Department.

May 19, 1978.

Before Motien, P. J., and Hopkins, Marrvusce cs,

LatHamM and Swaprro, JJ.

MEMORANDUM BY THE Court.

Motion by petitioner to strike the respondent’s name

from the roll of attorneys and counselors-at-law on the

ground that the respondent has been disbarred by virtue

of a felony conviction.

Motion granted.

The respondent, Alfred Fayer, admitted to practice be-

fore the Bar by this court on August 19, 1942, under the

name Feuereisen, was convicted of a felony (violation of

U.S. Code tit. 18, § 1623) in that while under oath as a

witness in a trial before the U.S. District Court for the

Al

A2

Appendia A. °

Eastern District of New York, he did knowingly make

false material declarations in the United States District

Court, for the Eastern District of New York on August

19, 1977, which judgment was amended nunc pro tunc on

May 5, 1978.

The clerk of this court is directed to strike his name

from the roll of attorneys and counselors-at-law forthwith

by reason of said conviction (Matter of Chu, 42 N.Y.2d

490, 398 N.Y.S.2d 1001, 369 N.E.2d 1).

I alll

A3

APPENDIX B

Orders of the New York Supreme Court, Appellate

Division, Second Department (unreported).

At a Term of the Appellate Division of the Su-

preme Court of the State of New York,

Second Judicial Department, held in Kings

County on May 19, 1978.

Hon. Mrtton Motten, Presiding Justice,

Hon. James D. Hopxrns,

Hon. M. Henry Marrvuscerx.o,

Hon. Hewry J. Larnam,

Hon. J. Irwin Suaptro,

Associate Justices.

s.

In the Matter of Alfred Fayer, an attorney, admitted

under the name of Alfred Feuereisen.

The Joint Bar Association Grievance Committee

for the Tenth Judicial District,

Petitioner ;

Alfred Fayer,

Respondent.

ORDER

In the above entitled disciplinary proceeding, the above

named The Joint Bar Association Grievance Comittee

for the Tenth Judicial District, petitioner, having mo, .d,

by a notice of motion, dated March 15, 1978, to strik»

the name of the respondent Alfred Fayer, an attorney and

counselor-at-law, who was admitted to practice by this

court on August 19, 1942 under the name Alfred Feuer-

eisen, from the Roll of Attorneys and Counselors-at-Law,

A4

Appendia B.

on the ound that the said respondent had been disbarred

by virtue of a felony conviction (violation of US Code

tit. 18, § 1623) in that while under oath as a witness in

a trial before the U. S. District Court for the Eastern

District of New York, he did knowingly make false ma-

terial declarations and did endeavor to influence the wit-

ness not to testify voluntarily before the Grand Jury, in

the United States District Court, for the Eastern District

of New York on August 19, 1977;

Now, upon the said notice of motion and the affidavit of

Francis F. Doran and the judgment of ccuviction an-

nexed thereto in support of the said motion and respond-

ent’s memorandum in response thereto; and Francis F.

Doran, Esq., having appeared of counsel for the petitioner

and Messrs. Martin, Obermaier & Morvillo, Esqs., having

appeared of counsel for the respondent, due deliberation

having been had thereon; and upon this court’s decision

slip heretofore filed and made a part hereof, it is

OrpERED that the said motion is hereby granted, and it

is further

OrpereD that, effective May 19, 1978, the name of the

respondent Alfred Fayer, admitted under the name Alfred

Feuereisen, is hereby struck from the Roll of Attorneys

and Counselors-at-Law by reason of said conviction (Mat-

ter of Chu, 42 NY2d 490), and it is further

Orprrep that, pursuant to Statute (Judiciary Law, § 90),

the said Alfred Fayer, admitted under the name of Alfred

Feuereisen, is hereby commanded to desist and refrain:

(1) from the practice of the law in any form, either as

principal, or as agent, clerk or employee of another; (2)

from appearing as an attorney or counselor-at-law before

any judge, justice, board, commission or other public au-

A5

Appendia B.

thority; (3) from giving another an opinion as to the law

or its application or any advice in relation thereto; and

(4) from holding himself out in any way as an attorney

and counselor-at-law, and it is further

OrperReD and Direcrep that the said Alfred Fayer, ad-

mitted as Alfred Feuereisen, shall comply with this court’s

rules governing the conduct of disbarred, suspended or

resigned attorneys—a copy of such rules being annexed

hereto and made a part hereof.

Enter:

Irvine N. Sevkrw

Clerk of the Appellate Division.

A6

Appendia B.

At a term of the Appellate Division of the Su-

preme Court of the State of New York,

Second Judicial Department, held in Kings

County on June 9, 1978.

Hon. Mivron Motiey, Presiding Justice,

Hon, James D, Hopkins,

Hon. M. Henry Marrvuscerzo,

How. Henry J. Laruam,

Hon. J. Irwin SxHaprio,

Associate Justices.

[SAME TITLE]

Orper AMENDING Decision AND ORDER.

In the above entitled disciplinary proceeding, this court

by a decision and an order, both dated May 18, 1978,

inter alia, having struck the name of the respondent Al-

fred Fayer, admitted under the name Alfred Feuereisen,

from the RoH of Attorneys and Counselors-at-Law, by

reason of a judgment of conviction of the United States

District Court for the Eastern District of New York, dated

August 19, 1977; thereafter, the attorneys for the said

respondent, under date of June 1, 1978, having forwarded

a further judgment of the said District Court, dated May

5, 1978, amending the said judgment of August 19, 1977

nunc pro tunc;

Now, in accordance therewith and upon the decision slip

of the court herein, heretofore filed and made a part hereof,

on this court’s own motion, it is

A7

Appendia B.

Orperep that the said decision, dated May 19, 1978 is

hereby amended by striking from the third paragraph

thereof everything in said paragraph following the words

‘‘knowingly make false material declarations’’ and by sub-

stituting therefor the following: ‘‘in the United States

District Court for the Eastern District of New York on

August 19, 1977, which judgment was amended nunc pro

tumc on May 5, 1978’’, and it is further

OrpereD the recital portion of the said order dated May

19, 1978, entered on said decision, is hereby amended

accordingly.

Enter:

Irvine N. Se._kin

Clerk of the Appellate Diviison.

A8

APPENDIX C

Decision and Order of the Court of Appeals of the

State of New York (September 1, 1978) (unreported).

Mo. No. 755

(SAME TITLE)

Motion for leave to appeal denied.

STATE OF NEW YORK,

COUR? OF APPEALS

At a session of the Court, held at Court of

Appeals Hall in the City of Albany on the

first day of September A.D. 1978.

Present, Hon. Cuarces D. Brerrer, Chief Judge, presiding.

Mo. No. 838

[SAME TITLE}

A motion having heretofore been inade herein upon the

part of the respondent to dismiss the appeal taken as of

right in the above cause to this Court and papers having

been submitted thereon and due deliberation having been

thereupon had, it is

OrpereD, that the said motion be and the same hereby

is granted and the appeal dismissed, without costs, upon

the ground that no substantial constitutional question is

directly involved.

JoserpH W. Betiacosa

Clerk of the Court

A9

APPENDIX D

“Suggested Guidelines for Rules of Disciplinary En-

forcement”, Standing Committee on Professional

amas of the American Bar Association, Rule

IV.

Rute XIV

Attorneys Convicted of Crimes

(a) Upon the filing with the Supreme Court of a certifi-

cate of conviction demonstrating that an attorney has been

convicted of a serious crime as hereinafter defined, the

Court shall enter an order immediately suspending the

attorney, whether the conviction resulted from a plea of

guilty or nolo contendere or from a verdict after trial

or otherwise, and regardless of the pendency of an ap-

peal, pending final disposition of a disciplinary proceeding

to be commenced upon such conviction. Upon good cause

shown, the Court may set aside such order restraining the

attorney from engaging in the practice of law when it

appears in the interest of justice so to do.

(b) The term ‘‘serious crime”’ shall include any felony

and any lesser crime a necessary element of which as

determined by the statutory or common law definition of

such crime, involves improper conduct as an attorney, in-

terference with the administration of justice, false swear-

ing, misrepresentation, fraud, willful failure to file income

tax returns, deceit, bribery, extortion, misappropriation,

theft, or an attempt or a conspiracy or solicitation of

another to commit a ‘‘serious crime.’’

(c) A certificate of a conviction of an attorney for any

crime shall be conclusive evidence of the commission of

that crime in any disciplinary proceeding instituted against

him based upon the conviction.

Al0

Appendix D.

(d) Upon the receipt of a certificate of conviction of an

attorney for a serious crime, the Court shall in addition

to suspending him in accordance with the provisions of

paragraph (a) of this Rule, also refer the matter to the

Board for the institution of a formal proceeding before

a hearing committee in which the sole issue to be deter-

mined shall be the extent of the final discipline to be

imposed, provided that a disciplinary proceeding so insti-

tuted will not be brought to hearing until all appeals from

the conviction are concluded.

(e) Upon receipt of a certificate of a conviction of an

attorney for a crime not constituting a serious crime, the

Court shall refer the matter to the Board for whatever

action it may deem warranted, including the institution

of an investigation by Disciplinary Counsel, or a formal

proceeding before a hearing committee, provided, however,

that the Court may in its discretion make no reference

with respect to convictions for minor offenses.

(f) An attorney suspended under the provisions of par-

agraph (a) of this Rule will be reinstated immediately

upon the filing of a certificate demonstrating that the

underlying conviction of a serious crime has been reversed

but the reinstatement will not terminate any formal pro-

ceeding then pending against the attorney, the disposi-

tion of which shall be determined by the hearing commit-

tee and the Board on the basis of the available evidence.

(g) The clerk of any court in this state in which an

attorney is convicted of a crime shall within ten days of

said conviction transmit a certificate thereof to this Court.

(h) Upon being advised that an attorney subject to the

disciplinary jurisdiction of this Court has been convicted

of a crime, Disciplinary Counsel shall determine whether

the clerk of the court where the conviction occurred has

forwarded a certificate to this Court in accordance with

All

Appendix D.

the provision of paragraph (g) of this Rule. If the certifi-

cate has not been forwarded by the Clerk or if the con-

viction occurred in another jurisdiction, it shall be the

responsibility of the Disciplinary Counsel to obtain a

certificate of the conviction and to transmit it to this Court.

(i) An order suspending an attorney from the practice

of law pursuant to this rule shall not constitute a sus-

pension of the attorney for the purpose of Rule XVIII

unless this Court shall so order.