Petition — Brasco v. Joint Bar Ass'n Grievance Committee for the Second & Eleventh Judicial Districts

78-1199

rt, U. &

FILED

Ix THE

JAN 17

Supreme Court of the United Ptates 2 8

Ocroszr Tznm, 1978 Le RODAK, R., CLERK

Frank J. Brasco,

Petitioner,

— vx —

THE JoilxT Bar Association GRIEVANCE COMMITTEE FOR

THE SECOND AND ELEVENTH Jupic1aL Districts,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE

STATE OF NEW YORK

Joun G. Bonomi

630 Fifth Avenue

New York, N. Y. 10020

(212) 397-9751

Attorney for petitioner

Saul. FRIEDBERG

402 South Country Road

Brookhaven, N. Y. 11719

Of counsel

TABLE OF CONTENTS

. PAGE

Opinions Below 1

Jurisdiction 2

Questions Presented 2

— —U— — . 3

Statement of the Case 4

Reason For GRANTING THE WRIT 18

Section 90.4 of the Judiciary Law of New York,

on Its Face, and as Applied to Petitioner, Grossly

Violates Art. I, Section 10 and the Fourteenth

Amendment of the Constitution of the United

States in a Manner Which, Since It Involves the

Relationship Between Courts and Their Officers,

Attorneys-at-Law, Strikes at the Administration

of Justice. The State Courts Decided These Sub-

stantial Federal Questions in a Way Not in Ac-

cord with Applicable Decisions of This Court

1. Judiciary Law 90.4 is a bill of attainder which

violates Art. I, Section 10 of the United States

Constitution .

2. The disbarment of petitioner by Judiciary Law

90.4 deprived him of his constitutionally pro-

tected interest in his right to practice law in

violation of the Fourteenth Amendment as in-

terpreted by authoritative decisions of the

United States Supreme Court

18

18

—

5

—

PAGE

a. The ew post facto effect of Matter of Chu

violated petitioner’s due process rights 22

b. Judiciary Law 90.4 on its face violates the

due process clause of the Fourteenth

Amendment 27

3. The action of the New York courts in striking

petitioner’s name from the roll of New York

attorneys violated petitioner’s rights of due

process under the Fourteenth Amendment to

the Constitution of the United States ................ 35

ConcLusion 35

APPENDIX la

Taste or CrraTions

Cases:

Matter of Anonymous No. 1, 45 AD2d 88 (1st Dept.

1973), appeal dismissed, 34 NY2d 517 (1974) ............ 13

Matter of Anonymous No, 2, 45 AD2d 89 (1st Dept.

1974), motion for leave to appeal denied, 34 NY2d

517, appeal dismissed, 34 NY2d 961 (1974) . 13

Matter of Barash, 20 NY2d 154 (1967) 7

Application of Bar Association of Nassau County, 4

AD2d 673 (2d Dept. 1957) 11

Bouie v. City of Columbia, 378 U. S. 347 (1964) ...........24, 25

Burgess v. Salmon, 97 U.S. 381 (1878) 24

Burke v. New York State Bar Ass’n, 55 AD 2d 988 (3rd

Dept. 1977) 11

PAGE

Matter of Cave, 64 AD2d 199 (2d Dept. 1978) 11

Matter of Chu, 42 NY2d 490 (1877) passim

Matter of Coin, 31 AD2d 32 (Ist Dept. 1968) ................ 12

Matter of Crosby, 281 App. Div. 801 (4th Dept. 1953) 12

Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 18 L. Ed.

356 (1867) hea 18, 19, 20, 24, 29

Curtis v. Monroe County Bar Ass’n, 39 AD2d 86 (4th

Dept. 1972) 12

Matter of Donegan, 282 NY 285 (1940) ‘ passim

Erdmann v. Stevens, 458 F2d 1205 (2d Cir. 1972) ....19, 21,

26, 31

Fletcher v. Peck, 10 U.S. (6 Cranch.) 87, 3 L. Ed. 162

(1810) 24

Ex parte Garland, 71 U.S. (4 Wall.) 333, 18 L. Ed. 366

TTT 19, 21, 24, 27, 29

Matter of Ginsberg, 253 App. Div. 197 (Ist Dept.

1938) 11

Matter of Glass, 59 AD2d 248 (1st Dept. 1977) 12

Hawker v. New York, 170 U.S. 189 (1879) 34

Matter of Hemlock, 52 AD2d 248 (Ist Dept. 1976) — 12

James v. United States, 366 U.S. 213 (1961) n 25

Johnson v. Avery, 393 U.S. 483 (1969) 26, 31

Matter of Jones, 506 Fad 527 (8th Cir. 1974) 32, 33

Konigsberg v. State Bar, 353 U.S. 252 (1956) 30

Matter of Levy, 44 AD2d 94 (1st Dept. 1974), affirmed,

37 NY2d 279 (1975) 10, 12, 19, 22, 31

iv

PAGE

Matter of Mahan, 237 App. Div. 664 (1st Dept. 1933) ..11, 12

Marks v. United States, 430 U.S. 189 (1977) 26

Matter of Ming, 469 Fad 1352 (7th Cir. 1972) 32

Matter of Nunan, 12 AD2d 365 (Ist Dept. 1962) ............ 12

Matter of Quinn, 45 AD2d 466 (ist Dept. 1974) 12

Randall v. Brigham, 74 U.S. (7 Wall.) 523, 19 L. Ed.

285 (1869) 29

Ross v. State of Oregon, 227 U.S. 150 (1913) 25

In re Ruffalo, 390 U.S. 544 (1968) 31

Matter of Schner, 278 App. Div. 138 (Ist Dept. 1951) — 11

Schware v. Board of Bar Examiners, 353 U.S. 232

(1957) 30

Matter of Selman, 51 AD2d 77 (Ist Dept. 1976) 12

Matter of Smiley, 51 AD2d 223 (Ist Dept. 1976) ............ 11

Spevack v. Klein, 385 U.S. 511 (1966) 19

Matter of Spitzer, 34 AD2d 323 (Ist Dept. 1972) 12

Matter of Sugarman, 64 AD2d 166 (Ist Dept. 1978) ... 8

Matter of Taylor, 26 AD2d 88 (Ist Dept. 1966) ............. 12

Matter of Thies, 45 NY2d 865 (1978) 14, 31

Thompson v. Utah, 170 U.S. 343 (1898) sen: oe

United States v. Brasco, 516 F2d 816 (2d Cir. 1975),

certiorari den., 423 U.S. 860 (1975) 5

United States v. Brown, 381 U.S. 437 (1965) 19, 20

United States v. Lovett, 328 U.S. 303 (1946) ............18, 19, 20

Ex parte Wall, 107 U.S. 265 (1881) 34

Matter of Weiss, 54 AD2d 78 (Ist Dept. 1976) ............ 11

Matter of Zipkin, 249 App. Div. 100 (Ist Dept. 1936) . 11

PAGE

Statutes and Rules:

Constitution of the United States: Art. I, Sections 9

and 10; Fourteenth Amendment passim

Civil Practice Law and Rules of New York, Section

0 17

Judiciary Law of New York, Sections 90.2, 90.4, 90.5

and 90.6 passim

Penal Law of New York, Art. 105, Section 265.05 9, 28

Penal Law of New York (1909), Art. 54 230

29, Sections 1-499, McKinney’s Consolidated Laws of

New York 3, 5, 6

Rules of the Appellate Division of the Supreme Court

of the State of New York, Second Judicial Depart-

ment, Part 691 6

Rules of the Supreme Court of the United States, Part

c 33-34

18 U.S.C. Section 371 ae Ge

26 U.S. C. Section 7203 12

e —————————— 2

Textbooks and Miscellaneous:

American Bar Association, Commission on Correc-

tional Facilities and Services, Results of a Survey

Inquiring into State Board of Bar Examiners Poli-

cies Relating to Admission of Ex-Off enders ................ 34

American Bar Association Special Committee on

Evaluation of Disciplinary Enforcement, Problems

and Recommendations in Disciplinary Enforcement

(Final Draft, 1970) 21

Henry Drinker, Legal Ethics (1963 Edition) 29

In THE

Supreme Court of the Anited States

Ocroser Term, 1978

No. 78.———

>

Frank J. Brasco,

Petitioner,

— v.

Tue Joixnr Ban Association Grievance CoMMITTEE FOR

THE Seconp AN Hieventa Joupici. Districts,

Respondent.

2

PETITION FOR WRIT OF CERTIORARI TO THE

COURT OF APPEALS OF THE

STATE OF NEW YORK

Opinions Below

There was no opinion below.

The New York Court of Appeals, by its order entered

October 19, 1978, denied petitioner’s motion for leave to

appeal to that court from an order of the Appellate Divi-

sion of the Supreme Court of the State of New York, Sec-

ond Judicial Department, entered April 3, 1978. No opinion

accompanied that order of the New York Court of Appeals.

The order of the New York Court of Appeals is reported

at 45 NY2d 711, and is reproduced in the Appendix.

The order of the Appellate Division, Second Depart-

ment, referred to, was also not accompanied by an opinion.

3

2 a

2

It was accompanied by a decision slip. The order and deci-

sion slip are reported at 62 AD2d 1006, and are reproduced

in the Appendix.

On June 9, 1978, the Appellate Division, Second Depart-

ment, made an order denying petitioner’s motion in that

court for leave to appeal to the New York Court of Ap-

peals. That order was accompanied by a decision slip but

not by an opinion. The order of June 9, 1978 and its ac-

companying decision slip are not reported. They are re-

produced in the Appendix.

Jurisdiction

The order of the Court of Appeals of the State of New

York, review of which is here sought, was entered October

19, 1978. The jurisdiction of this Court rests on 28 U.S.C.

2101.

Questions Presented

1. Is subsection 4 of Section 90 of the Judiciary Law of

New York, which legislatively mandates the automatic dis-

barment of a New York attorney-at-law upon his convic-

tion of a felony, without the possibility of any judicial con-

sideration or action, and by reason of which petitioner was

disbarred by the State of New York, a bill of attainder

violative of Art. I, Section 10 of the Constitution of the

United States?

2. Did the retroactive, automatic disbarment of peti-

tioner, a New York attorney-at-law, without the possibility

of judicial consideration or action, by the action of subsec-

tion 4 of Section 90 of the Judiciary Law of New York,

as retroactively interpreted and applied by the New York

Court of Appeals decision in Matter of Chu, 42 NY2d 490

(1977), violate the prohibition against ex post facto laws

contained in Art. I, Section 10 of the Constitution of the

United States and deprive petitioner of valuable rights in

violation of the Fourteenth Amendment of the Constitu-

tion of the United States?

3. Did the action of the Appellate Division of the Su-

preme Court of the State of New York, Second Judicial De-

partment, in performing the ministerial act of striking peti-

tioner’s name from the roll of attorneys pursuant to sub-

section 4 of Section 90 of the Judiciary Law of the State

of New York violate petitioner’s rights under Art. I, Sec-

tion 10 and the Fourteenth Amendment of the Constitu-

tion of the United States?

Statute Involved

The statute which this case involves is subsection 4 of

Section 90 of the Judiciary Law of New York, which may

be found at 29, Sections 1-499, McKinney’s Consolidated

Laws of New York 120, and which reads as follows:

“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 counsel-

lor-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

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

of attorneys.”

Statement of the Case

Petitioner Frank J. Brasco was admitted to the Bar in

the State of New York at a term of the Appellate Division

of the Supreme Court of the State of New York for the

Second Judicial Department on March 26, 1958.

On October 23, 1973, petitioner was indicted in the

United States District Court for the Eastern District of

New York. The single count indictment, 73 Cr. 985, charged

him with having engaged in a conspiracy, in the period

from June 1967 to November 1968, while he was a Repre-

sentative from Brooklyn in the Congress of the United

States, to influence the United States Post Office Depart-

ment to award contracts for the hauling of mail, in viola-

tion of Section 371 of Title 18, United States Code.

18 USC 371 reads as follows:

“If two or more persons conspire either to commit any

offense against the United States, or to defraud the

United States, or any agency thereof in any manner

or for any purpose, and one or more of such persons

do any act to effect the object of the conspiracy, each

shall be fined not more than $10,000 or imprisoned not

more than five years, or both.

“If, however, the offense, the commission of which is

the object of the conspiracy, is a misdemeanor only,

the punishment for such conspiracy shall not exceed

the maximum punishment provided for such misde-

meanor.”

The offense in petitioner’s case was a federal felony.

Petitioner pleaded not guilty and went to trial before

a jury in the Eastern District. On July 19, 1974, the jury

— —

5

returned a verdict of guilty, and, on October 21, 1974, a

judgment of conviction was entered and petitioner was

sentenced to a jail term of three months, to probation for

an additional 57 months, and to a fine of $10,000. The

judgment of conviction was affirmed May 21, 1975. United

States v. Brasco, 516 F2d 816 (2d Cir. 1975), certiorari den.,

423 U.S. 860 (1975).

As a result of his conviction, petitioner became subject

to professional discipline as a New York attorney.

At the time the judgment of conviction was entered,

October 21, 1974, and now, there were and are two New

York statutes governing attorney-discipline, to wit: sub-

sections 2 and 4 of Section 90 of the Judiciary Law of

New York (hereinafter referred to as Judiciary Law 90.2

and Judiciary Law 90.4).

Judiciary Law 90.2 reads in relevant part as follows:

“2. The supreme court shall have power and control

over attorneys and counsellors-at-law and all persons

practicing or assuming to practice law, and the appel-

late division of the supreme court in each department

is authorized to censure, suspend from practice or re-

move from office any attorney and counsellor-at-law

admitted to practice who is guilty of professional

misconduct, malpractice, fraud, deceit, crime or mis-

demeanor, or any conduct prejudicial to the adminis-

tration of justice .. . 29, Sections 1-499, McKinney’s

Consolidated Laws of New York 119.

Discipline under Judiciary Law 90.2 is subject to the pro-

visions of subsection 6 of Section 90 of the Judiciary Law

(Judiciary Law 90.6), which reads in relevant part as fol-

lows:

6

“6. Before an attorney or counsellor-at-law is sus-

pended or removed as prescribed in this section, a

copy of the charges against him must be delivered

to him personally within or without the state, or, in

case it is established to the satisfaction of the presid-

ing justice of the appellate division of the supreme

court to which the charges have. been presented, that

he cannot with due diligence be served personally,

the same may be served upon him by mail, publication

or otherwise as the said presiding justice may direct,

and he must be allowed an opportunity of being heard

in his defense.” McKinney, op. cit. 120,

The procedure for disciplining an attorney under Judi-

ciary Law 90.2, which is also governed by Part 691 of the

Rules of the Appellate Division, Second Department, may

be described as follows.

The Joint Bar Association Grievance Committee for the

Second and Eleventh Judicial Districts (hereinafter called

the Grievance Committee) would institute a proceeding in

the Appellate Division, Second Department, by serving

and filing a petition charging specified acts of professional

misconduct by the attorney involved and asking the court

to impose such discipline as to it appeared proper. The

attorney involved would have the opportunity to file a reply.

The court would then make an order appointing a referee

to take testimony as to the charges and to report the same

with his opinion to the court.

Hearings would then be held before the referee at which

both sides would have the opportunity to present evidence

and cross-examine each other’s witnesses, after which the

referee would make his report to the court. The court

would then make an order (presumably) confirming the

i

7

report of the referee and imposing discipline. The dis-

cipline could be either censure, suspension from practice

for such period as the court determined and specified in

its order, or disbarment. Of course, the referee might find

the charges not sustained and the court might then dismiss

them.

An attorney suspended by such an order had the right

to apply for reinstatement after the expiration of the

period of suspension; if he were ordered disbarred, he had

the right to apply for reinstatement after seven years. His

reinstatement would rest in the unrestricted discretion of

the court.

Judiciary Law 90.4, the other statute governing attorney

discipline, referred to above, is set out as the Statute In-

volved above. It has long been the law in New York that

disbarment under Judiciary Law 90.4 is an automatic

result of the statute and requires no court consideration or

action, As the New York Court of Appeals said in Matter

of Barash, 20 NY 2d 154, 157 (1967), disbarment under

Judiciary Law 90.4 is automatic and “no further action,

judicial or otherwise, is required to constitute the fact...”

As a result, an attorney subject to Judiciary Law 90.4

never receives any “notice” of his disbarment, and he is

disbarred as of the date of his conviction without having

had the opportunity to present evidence on his own behalf,

whether as to the nature of his wrongful conduct, going to

mitigation, bearing on his past record or on his present

character and fitness to practice law, or bearing on the

extent of the penalty to be imposed. In fact, no court, nor

any other body, gives any consideration to the extent of

the penalty to be imposed; disbarment is the automatic

result of the statute.

8

Such being the case, the action of the court under Judi-

ciary Law 90.4 in striking the attorney’s name from the

rolls is purely a mandatory, ministerial act. As the Appel-

late Division, First Department said recently in Matter of

Sugarman, 64 AD2d 166 (1st Dept. 1978) :

“The termination of membership in the Bar by reason

of the attorney’s conviction of a felony differs from

disbarment by order of this court [under Judiciary

Law 90.2] in that the court does not disbar an attorney

convicted of a felony. The statute renders him ineligi-

ble to continue as a member of the Bar; this court

merely records the fact that the convicted attorney is

no longer a member of the Bar.”

Until a statutory amendment which was signed into law

December 7, 1978, the consequence is that an attorney dis-

barred by operation of Judiciary Law 90.4 is disbarred for

life; no New York court has the power to, and no New

York court can or will, reinstate his license and right to

practice law, no matter how much time has passed, no mat-

ter how he has conducted himself, and no matter what his

character and fitness may be. Matter of Sugarman, supra.

As the New York Court of Appeals said in Matter of Done-

gan, 282 NY 285, 292 (1940), the effect of Judiciary Law

90.4 is “automatic and irrevocable disbarment for life

a consequence most severe [which] partakes of the nature

of punishment.”

The statute signed into law December 7, 1978 amended

subsection 5 of Section 90 of the Judiciary Law of New

York so that that subsection now reads:

“Upon a reversal of the conviction for felony of an

attorney and counsellor-at-law, or pardon by the presi-

dent of the United States or governor of this or an-

9

other state of the United States, or if during a period

of seven years after such removal or debarment, the

attorney and counsellor-at-law has not been convicted

of a crime, the appellate division shall have power to

vacate or modify such order of debarment.” (Matter

in italics added by amendment.)

It is uncertain at this time whether the amendment ap-

plies to attorneys who were disbarred by the automatic op-

eration of Judiciary Law 90.4, and it is equally uncertain,

if it does, whether it applies to those so disbarred prior to

the effective date of the amendment (as was petitioner).

It must also be noted that, while the discretion of the

court to reinstate an attorney disbarred under Judiciary

Law 90.2 is unrestricted, the amendment permits such

discretion to be exercised as to attorneys disbarred by

Judiciary Law 90.4 only if they have not been convicted

of any crime during the seven year period after disbar-

ment,

At the time of petitioner’s conviction October 21, 1974,

the operation of Judiciary Law 90.4 was controlled by the

holding of the New York Court of Appeals in the 1940

case of Matter of Donegan, supra. Donegan established

that, if an attorney was convicted in federal court of a

federal felony, he was not subject to the operation of

Judiciary Law 90.4 unless the federal felony of which he

was convicted found its counterpart among the statutory

felonies set out in the Penal Law of New York.

The crime of which petitioner was convicted, a con-

spiracy in violation of 18 USC 371, is classified by federal

law as a felony. However, criminal conspiracies, with

exceptions not here relevant, are classified as New York

misdemeanors by Art. 54 of the 1909 Penal Law of New

York and by Art. 105 of its present Penal Law.

10

Therefore, under the rule in Donegan, petitioner was

not subject to the operation of Judiciary Law 90.4 and

was not disbarred by and at the time of his conviction.

However, petitioner had been found guilty of a crime

and, therefore, although not subject to Judiciary Law 90.4,

ud was subject to Judiciary Law 90.2.

Under Judiciary Law 90.2, as stated above, petitioner

would have received notice of the charges and a hearing

at which he could have presented evidence in his own be-

half. The rule of Judiciary Law 90.2 cases based upon

conviction of a crime not a felony, as to what evidence

may be introduced and considered, is set forth as follows

in Matter of Levy, 37 NY2d 279, 281-2 (1975):

“While the issue of guilt may not be relitigated, the at-

torney may, of course, introduce any competent evi-

dence by means of which to explain or mitigate the

significance of his criminal conviction . . . any proof

which is reasonably relevant to the ultimate issues—

the character of the offense committed and the nature

of the penalty, if any, to be imposed ... Thus, there

should be received any competent proof which will

assist the Appellate Division in the discharge of its

difficult and delicate responsibility of determining

what sanction, if any be appropriate, will best serve

the public interest and at the same time assure the

particular attorney full due process and fairness in

recognition of the substantial interest that is his in his

right to practice law.”

That being the New York law, Judiciary Law 90.2 pro-

ceedings can and have resulted in wide variations in the

penalties imposed in cases involving the same type of mis-

11

conduct, including cases where the misconduct consisted

of convictions for federal felonies which are misdemeanors

under New York law.

As examples, in cases where attorneys have been charged

with the conversion of client-funds, there have been wide

differences in the penalties imposed, as shown by the fol-

lowing table:

Censure—Matter of Schner, 278 App. Div. 138 (Ist

, Dept. 1951); Burke v. New York State Bar

Ass'n, 55 AD 2d 988 (3rd Dept. 1977)

Sia month suspension Matter of Ginsberg, 253 App.

Div. 197 (ist Dept. 1938)

One year suspension—Matter of Zipkin, 249 App. Div.

100 (Ist Dept. 1936)

Two year suspension—Matter of Mahan, 237 App. Div.

664 (Ist Dept. 1933)

Three year suspension—Matter of Smiley, 51 AD2d

223 (Ist Dept. 1976)

Disbarment—Matter of Cave, 64 AD2d 199 (2d Dept.

1978).

Turning to cases involving, as does petitioner’s case,

convictions for federal felonies based on conduct not feloni-

ous under New York law, there were the.same wide varia-

tions in the penalties imposed, as the following examples

show:

Censure—Matter of Weiss, 54 AD2d 78 (1st Dept.

1976)

Three month suspension—Application of Bar Assn. of

Nassau County, 4 AD2d 673 (2d Dept. 1957)

12

Six month suspension—Matter of Spitzer, 34 AD2d 323

(1st Dept. 1972)

One year suspension—Curtis v. Monroe County Bar

Ass'n, 39 AD2d 86 (4th Dept. 1972); Mat-

ter of Mahan, supra; Matter of Nunan, 12

AD2d 365 (ist Dept. 1962); Matter of

Crosby, 281 App. Div. 801 (4th Dept. 1953)

Two year suspension—Matter of Selman, 51 AD2d 77

(1st Dept. 1976) |

Disbarment—Matter of Glass, 59 AD2d 248 (1st Dept.

1977); Matter of Quinn, 45 AD2d 466 (1st

Dept. 1974); Matter of Levy, 44 AD2d 94

(Ist Dept. 1974), affirmed, 37 NY2d 279

(supra); Matter of Coin, 31 AD2d 32 (1st

Dept. 1968).

In Matter of Hemlock, 52 AD2d 248 (1st Dept. 1976),

there were two attorney-respondents, Hemlock and Hoffer,

each of whom had been convicted in federal court for

complicity in the same conspiracy, the crime being a

felony under federal law but a misdemeanor under New

York law. Hemlock was disbarred; Hoffer was suspended

for three years. The reason for the difference in the

penalties was the difference in the evidence in explana-

tion and mitigation presented by the two respondents.

An example of the kind of reasoning employed by the

New York courts in reaching these different results is

this language from Matter of Taylor, 26 AD2d 88, 89-90

(1st Dept. 1966), where the respondents had been convicted

of violating 26 USC 7203:

“We find that the circumstances to a large degree ex-

tenuate his conduct. Particularly impressive are his

hitherto respectable career, the degree of punishment

13

to which he has been subjected, the co-operation he has

given, and the candor he has displayed in this proceed-

ing.”

Therefore, had a Judiciary Law 90.2 proceeding been

instituted against petitioner at bar at the time of his con-

viction and in accordance with the rule in Donegan, he

would have had the right and the opportunity to offer a

wide variety of evidence in explanation and mitigation and

the court would have tailored the penalty to the evidence;

petitioner might have been censured, or suspended for such

period as the court directed, or disbarred. If disbarred,

petitioner would have the right to apply for reinstate-

ment after seven years. It would even have been possible

for the charges to have been dismissed and no penalty at all

imposed. See: Matter of Anonymous No. 1, 45 AD 2d 88

(1st Dept. 1973), appeal dismissed, 34 NY 2d 517 (1974);

Matter of Anonymous No. 2, 45 AD 2d 89 (Ist Dept. 1974),

motion for leave to appeal denied, 34 NY 2d 517, appeal

dismissed, 34 NY 2d 961 (1974).

On October 13, 1977, the New York Court of Appeals

decided the case of Matter of Chu, 42 NY2d 490 (1977) and,

by Chu, repealed and nullified its decision in Matter of

Donegan, supra. In Chu, the court ruled that the felonies

covered by Judiciary Law 90.4 did, in fact, include every

federal felony, whether it was comparable to a New York

Penal Law felony or not. ;

There were two days in which Chu could have been given

effect: one, New York could have made it applicable only

to felonies committed after Chu was decided, or to convie-

tions after that date; or, two, New York could have made

it applicable to all convictions for federal felonies, includ-

ing those convictions which occurred prior to the date Chu

14

was decided, during the period when Donegan was in effect.

If the second alternative was chosen, then the nature of the

penaity for federal felony convictions ante-dating Chu

would be retroactively changed by Chu; and, also, the pro-

cedure would be retroactively changed from one requiring

notice and a hearing to one of the automatic imposition of

the penalty. As will be seen, New York chose the second

alternative and applied it to petitioner.“

Any doubts as to the scope of Chu, generated by the some-

what ambiguous language of the opinion in it, were re-

moved by the New York Court of Appeals in its decision in

Matter of Thies, 45 NY2d 865 (1978). In Thies, however,

three of the seven judges filed a vigorous dissenting memo-

randum containing the following (45 NY 2d at 867) :

“This inflexibly harsh rule needlessly rejects the princi-

ple that firm discipline can be achieved without sacri-

ficing fairness and reason (see concurring opinion, Mat-

ter of Chu, 42 NY2d 490, 495). The aberrational [sic]

results which today’s determination will bring may

now be avoided only by legislative action.”

Commenting on these dissenting views, the majority in

Thies said (45 NY2d at 866):

“If as [the dissenters] urge, consideration should be

given to the gravity of the offense and to mitigating

circumstances, on principle this would seem to be

equally true with respect to convictions for New York

felonies. Yet, as the dissenters recognize, the validity

»The New York courts have not yet decided whether Chu ap-

plies to attorneys as to when disciplinary proceedings were termi-

nated prior to Chu.

— —

15

of the concept of automatic disbarment as applied to

New York felonies has long been upheld.” ®

Between October 21, 1974, when petitioner was convicted,

and October 13, 1977, when Chu was decided, neither the

Grievance Committee, nor the court, nor anyone else, in-

stituted a disciplinary proceeding against petitioner under

Judiciary Law 90.2. During those years, petitioner con-

tinued, properly, to practice law in Brooklyn unimpeded

by, and without complaint from, anyone,

However, after Chu, the State of New York immediately

took the position that, by reason of that case, petitioner was

retroactively disbarred as of the date of his conviction

under Judiciary Law 90.4.

By a Notice of Motion dated December 27, 1977, the

Grievance Committee presented petitioner’s 1974 conviction

of a federal felony to the attention of the Appellate Divi-

sion, Second Department, and asked that court to perform

the ministerial, mandatory act, under Judiciary Law 90.4,

of striking petitioner’s name from the roll of New York at-

torneys. In support of its request, the Grievance Com-

mittee cited Chu, and said, in the affidavit it submitted in

support of its motion: “Respondent [here petitioner], hav-

ing been convicted of a felony, was automatically disbarred

(Matter of Chu... ).”

In opposition to the Grievance Committee motion, peti-

tioner submitted to the Appellate Division, Second Depart-

ment, an affidavit in which it was stated:

“If Section 90(4) of the Judiciary Law of New York

State is intended, interpreted and applied to mandate

* Neither the United States Supreme Court, nor any lower

90.4. In fact, the New York Court of Appeals has never given

direct consideration to the question.

16

the summary disbarment of Respondent [here peti-

tioner] for life, without a hearing of any nature con-

cerning mitigating circumstances and solely on the

basis of his federal felony conviction, then Section

90(4) .. . is repugnant to the Fifth, Eighth and Four-

teenth Amendments to the Constitution of the United

States...”

This constitutional position was supported at length in

the Memorandum of Law submitted by petitioner to the

Appellate Division, Second Department, in opposition to

the Grievance Committee motion. 7

On April 3, 1978, the Appellate Division, Second Depart-

ment, made its order, based upon its decision slip, which

granted the motion, struck petitioner’s name from the roli

of attorneys, and enjoined petitioner from the practice of

law, citing Matter of Chu. That order, together with its

accompanying decision slip, is reproduced in the Appendix.

The court did not issue any opinion in connection with its

order.

As is evident from the order and decision slip, and by the

absence of any opinion, the court gave no consideration to

petitioner’s claim that the retroactive, automatic disbar-

ment of him by reason of Judiciary Law 90.4 and Matter of

Chu, and the striking of his name from the roll of attorneys

by reason thereof, violated his rights under the Constitu-

tion of the United States.

By reason, therefore, of the decision in Matter of Chu,

the penalty of automatic (perhaps life-time) disbarment

was retroactively imposed upon petitioner in consequence

of his 1974 conviction; and he was retroactively deprived

of the opportunity to present evidence, which he theretofore

17

would have had, in explanation and mitigation, and he was

retroactively deprived of the right, which he theretofore

had, to have a New York court give consideration to the

question of what penalty should be imposed in the light

of the entire record.

By Notice of Motion of May 10, 1978, petitioner moved

the Appellate Division, Second Department, under Section

5602 of the Civil Practice Law and Rules of New York,

for permission to appeal the court’s action to the state’s

highest court, the New York Court of Appeals, the reasons

cited in support of the motion being the same claims under

the United States Constitution described above. Peti-

tioner’s motion was denied by the court’s order of June

9, 1978, which also was supported by a decision slip and

was not accompanied by an opinion. The order and decision

slip are reproduced in the Appendix. Once again the court

apparently ignored the constitutional issues completely.

By a Notice of Motion of July 18, 1978, also made pur-

suant to CPLR 5602, petitioner then moved in the New

York Court of Appeals for leave to appeal the Appellate

Division, Second Department action to that court. Peti-

tioner’s above-described constitutional claims were urged

on the court as reasons for granting permission to appeal.

By its order of October 19, 1978, the New York Court

of Appeals denied petitioner’s motion for leave to appeal,

its order, which is reproduced in the Appendix, not being

accompanied by an opinion. Again the court apparently

ignored petitioner’s constitutional claims. This order of

the New York Court of Appeals terminated the proceed-

ing in the New York courts and is the final action of which

petitioner seeks review here.

18

REASONS FOR GRANTING THE WRIT

Section 90.4 of the Judiciary Law of New York, on Its

Face and as Applied to Petitioner, Grossly Violates Art.

I, Section 10 and the Fourteenth Amendment of the

Constitution of the United States in a Manner Which,

Since It Involves the Relationship Between Courts and

Their Officers, Attorneys-at-Law, Strikes at the Adminis-

tration of Justice. The State Courts Decided These Sub-

stantial Federal Questions in a Way Not in Accord With

Applicable Decisions of This Court.

I. Judiciary Law 90.4 is a bill of attainder which violates

Art. I, Section 10 of the United States Constitution,

In Cummings v. Missouri, 71 U.S. (4 Wall.) 277, 18 L.

Ed. 356, 363 (1867), this Court defined a bill of attainder as

“a legislative act which inflicts punishment without judicial

trial.” Eighty years later, the Court described bills of at-

tainder as follows:

“(Legislative acts ... that apply either to named in-

dividuals or easily ascertainable members of a group

in such a way as to inflict punishment on them without

a judicial trial are bills of attainder prohibited by the

Constitution.” United States v. Lovett, 328 U.S. 303,

315 (1946).

Judiciary Law 90.4 meets every requirement of the defini-

tion since it is a legislative act which inflicts a grievous

punishment without a trial and without any judicial con-

sideration or action.

There can be no doubt that the automatic disbarment

imposed by Judiciary Law 90.4 is a punishment.

19

“Any deprivation or suspension [of the right to prac-

tice. a profession] is punishment, and can in no other-

wise be defined.” Cummings v. Missouri, supra, 18 L.

Ed. at 362.

E]xelusion from any of the professions .. can be

regarded in no other light than as punishment .. .”

Ea parte Garland, 71 U.S. (4 Wall.) 333, 18 L. Ed. 366,

370 (1867).

In Spevack v. Klein, 385 U.S. 511, 514 (1966), the Court

spoke of “the dishonor of disbarment and the deprivation

of a livelihood” resulting from it.

In Erdmann v. Stevens, 458 F2d 1205, 1210 (2d Cir.

1972), the court said:

Flor most attorneys the license to practice law repre-

sents their livelihood, the loss of which may be a

greater punishment than a monetary fine. See Brad-

ley v. Fisher, 80 U.S. [13 Wall.] 335, 355, 20 L. Ed. 646

(1872). .

The New Vork Court of Appeals has expressed the same

view. “[D]isbarment .. . [is] a consequence most severe

[which] partakes of the nature of punishment.” Matter

of Donegan, supra, 282 NY at 292. Disbarment is a “pen-

alty” for professional misconduct and deprives the at-

torney “of the substantial interest that is his in his right

to practice law.” Matter of Levy, supra.

Similarly, “permanent proscription from any oppor-

tunity to serve the Government is punishment, and of a

most severe type.” United States v. Lovett, supra, 328

U.S. at 316. And deprivation of the right to hold union

office is a punishment. United States v. Brown, 381 U.S.

20

487 (1965). In both Lovett and Brown, the classification of

the consequence as punishment was made in connection

with holdings that the legislation in question was a bill

of attainder.

The Court has expressed its view that a basic purpose,

in our political structure, for the proscription against bills

of attainder, is the necessity of guaranteeing the constitu-

tional separation of powers, it being the function of the

courts, not the legislature, to prescribe punishments for of-

fenses. The proscription is “a general safeguard against

legislative excercise of the judicial function, or more sim-

ply—trial by legislature.” United States v. Brown, supra,

881 U.S. at 442. Nowhere is this consideration of more con-

sequence than the area of attorney discipline. Attorneys,

being court officers, and not creatures of the legislature,

may be subjected to discipline only by the court, after

judicial inquiry and judgment, and not by legislative fiat.

Any other rule would strike at the heart of the separation

of powers and the independent judiciary. As stated by

this Court in Cummings v. Missouri, supra, 18 L. Ed. at

370:

“The profession of an attorney and counselor is not

like an office created by an act of Congress.. . They

are officers of the court: admitted as such by its order,

upon evidence of their possessing sufficient legal learn-

ing and fair private character. . The order of

admission is the judgment of the court that the parties

possess the requisite qualifications as attorneys and

counselors, and are entitled to appear as such and

conduct causes therein. From its entry the parties

become officers of the court and are responsible to it

for professional misconduct. They hold their office

during good behavior, and can only be deprived of it

21

for misconduct ascertained and declared by the judg-

ment of the court after opportunity to be heard has

been afforded ... Their admission or their exclu-

sion is not the exercise of a mere ministerial power.

It is the exercise of judicial power, and has been so

held in numerous cases.”

The Court repeated these views in Ew parte Garland,

supra, saying there that an attorney does not hold his

office by “grace or favor” and can be disbarred only “by

the judgment of the court, for moral or professional delin-

quency.” 71 U.S, at 379.

Once again, this time after 105 years, another federal

court used almost the same language. “The court alone

admits an applicant to practice before it. Thereupon he

becomes an officer of the court. The power to discipline

... rests exclusively with the court.” Erdmann v. Stevens,

supra, 458 F2d at 1209.

The American Bar Association Special Committee on

Evaluation of Disciplinary Enforcement, in its Problems

and Recommendations in Disciplinary Enforcement (Final

Draft, June 1970), pp. 18 et seq., expressed the same view,

speaking of the court’s “exclusive jurisdiction” to super-

vise the Bar “without or despite contrary legislative ac-

tion.” (Emphasis added.)

This being so, the fiat of the New York legislature in

prescribing automatic disbarment upon conviction of a

felony is a patent bill of attainder, in violation of the

United States Constitution. It is a violation which strikes

at the separation of powers and undermines the indepen-

dence and integrity of the courts, of the court-attorney re-

lationship, and of the administration of justice, of which

this Court should take cognizance.

22

It is also a gross injustice to the attorney involved here,

because it has deprived him of the right, which is his as

an officer of the court, to have the court consider his pro-

fessional history and his character and fitness, as well as

the nature of his offense, and impose a penalty properly

fitted to the case. The discussion, in the Statement of the

Case, above, of the variety of the penalties imposed by

the New York courts for the same offense after they have

reviewed all the circumstances, underlines the injustice to

petitioner here.

2. The disbarment of petitioner by Judiciary Law 90.4 de-

prived him of his constitutionally protected interest in his

right to practice law without due process of law in violation

of the Fourteenth Amendment as interpreted by authorita-

tive decisions of the United States Supreme Court.

a. The ex post facto effect of Matter of Chu violated peti-

tioner’s due process rights,

When petitioner, in 1967-1968, committed the acts for

which he was convicted, and when he was convicted for

those acts in 1974, Matter of Chu, supra, had not been de-

cided, and Matter of Donegan, supra, was still the law.

Under Donegan, Judiciary Law 90.4 did not apply to

petitioner. If he was to be disciplined, the proceedings had

to take place under Judiciary Law 90.2.

Under Judiciary Law 90.2, petitioner was entitled to a

judicial hearing at which he would have had the oppor-

tunity to present evidence in mitigation and explanation

and, at the end of which, the court would have discharged

“its difficult and delicate responsibility of determining

what sanction, if any be appropriate, will best serve the

public interest and at the same time assure [petitioner]

full due process and fairness in recognition of the substan-

tial interest that is his in his right to practice law.” Matter

of Levy, supra,

23

As has been amply demonstrated in the Statement of the

Case above, at the end of the judicial inquiry the court

might have found that no penalty should be imposed, or it

might have decided on a penalty which could have been

censure, suspension for a specified period, or disbarment.

If disbarrred, petitioner could have applied for reinstate-

ment after seven years, and when he did so the court would

have the unrestricted discretion to reinstate him.

As it happened, in the three years from his conviction in

1974 until 1977 when Chu was decided, petitioner was per-

mitted by the State of New York to continue his practice

of law unimpeded and no proceedings whatsoever were

brought against him.

Petitioner’s situation was changed completely, to his

great disadvantage, by Matter of Chu.

Matter of Chu, decided October 13, 1977, determined

that Judiciary Law 90.4 did indeed apply to petitioner and

that, retroactively, he had therefore been automatically

disbarred for life, with no possibility of reinstatement, as

of the date of his conviction, October 21, 1974. (The amend-

ment of Judiciary Law 90.5 had not been enacted at the

time Chu was decided.) In the words of the statute, “upon

[his] conviction [petitioner] cease[d] to be an attorney

and counselor-at-law, or to be competent to practice as

such.“

Chu did more. It took away from petitioner the right

which he had theretofore had to a judicial hearing, to pre-

sent evidence in mitigation and explanation, and to have

the court determine the penalty to be imposed by reason

of his conviction in the light of all the evidence. It took

away from him the possibility, which he had had, of

“acquittal,” or of being censured, or of being suspended

24

for a specified period. And it took away from him the

right, were he disbarred, to apply for reinstatement after

seven years. As a result of Chu, petitioner was automati-

cally disbarred for life, without possibility of reinstate-

ment, by legislative flat.“

Chu, therefore, greatly worsened petitioner’s situation

and changed the consequences of his criminal conviction

radically for the worse; petitioner was thus subjected to a

classic ex post facto result.

The judicial definition of the ex post facto effect has been

unchanged since the founding of the Republic and it clearly

covers what happened to petitioner.

In Fletcher v. Peck, 10 U.S. (6 Cranch.) 87, 3 L. Ed. 162,

178 (1810), this Court said that an ex post facto law is

one “which renders an act punishable in a manner in

which it was not punishable when it was committed.”

This was repeated in Cummings v, Missouri, supra, 18

L. Ed. at 364, where the Court described an ex post facto

law as one which imposed an “ ‘additional punishment to

that prescribed when the act was committed.’ ” To the same

effect, see: Eæ parte Garland, supra, 18 L. Ed. at 370;

Burgess v. Salmon, 97 U.S. 381 (1878) ; Thompson v. Utah,

170 U.S. 343, 351 (1898), where the Court said that an ex

post facto law is “one which ‘alters the situation of the

accused to his disadvantage.’”; and Bouie v. City of

Columbia, 378 U.S. 347, 353-54 (1964), where the Court had

the following to say:

* As stated above, it is uncertain whether the December 7,

1978 amendment of Judiciary Law 90.5 applies to petitioner.

Further, as also stated above, the court’s — * under that

amendment is restricted.

25

“[A]n unforeseeable judicial enlargement of a criminal

statute, applied retroactively, operates precisely like

an ex post facto law, such as Art. I, §10, of the Consti-

tution forbids...”

In Ross v. State of Oregon, 227 U.S. 150 (1913), this

Court ruled that the prohibition in Art I, Sections 9 and

10 of the Constitution does not apply to changed judicial

interpretations of statutes, only to statutes. As said in

James v. United States, 366 U.S. 213, 224 (1961):

“(T]he ea post facto provision of the Constitution has

not ordinarily been thought to apply to judicial legis-

lation.”

But the pernicious effect of increasing a penalty retro-

actively is of the same dimension whether the increase is

brought about by statute or by “judicial legislation.” And,

therefore, the possible evil was recognized and eliminated

by the Court, which has held that judicial legislation which,

ex post facto, “alters the situation of the accused to his

disadvantage” and imposes an additional penalty upon

him, although not barred by Art. I, Section 9 or 10, is

nevertheless a deprivation of due process barred by the

Fourteenth Amendment. The principle was expressed in

the foregoing quotation from Bouie v. City of Columbia,

with the following addition:

“If a State legislature is barred by the Ex Post Facto

Clause from passing such a law, it must follow that a

State Supreme Court is barred by the Due Process

Clause from achieving precisely the same result by

judicial construction.”

The principle was followed in Marks v. United States, 430

U.S. 189 (1977).

The statute retroactively modified by Matter of Chu,

Judiciary Law 90.4, is not a criminal statute. However,

that fact does not change the result.

For due process purposes, an attorney threatened with

the penalty or punishment of disbarment because of his

conviction of a felony is entitled in this area to the same

due process as a person being tried in a criminal court for

a crime. “[T]he power of the States to control the practice

of law cannot be exercised so as to abrogate federally pro-

tected rights.“ Johnson v. Avery, 393 U.S. 483, 490 n.11

(1969). In Erdmann v. Stevens, 458 F 2d 1205, 1209-10

(2d Cir. 1972), the court said:

„[A] court’s disciplinary proceedings against a member

of the bar is comparable to a criminal rather than a

civil proceeding , . . it cannot be disputed that for most

attorneys the license to practice law represents their

livelihood, the loss of which may be a greater punish-

ment than a monetary fine. See Bradley v. Fisher, 80

U.S. [13 Wall.] 335, 355, 20 L. Ed. 646 (1872) ; Spevack

v. Klein, 385 U.S. 511, 516, 87 S. Ct. 625, 17 L. Ed. 2d

574 (1967). Furthermore, disciplinary measures

against an attorney, while posing a threat of incarcer-

ation only in cases of contempt, may threaten another

serious punishment—loss of professional reputation.

The stigma of such a loss can harm the lawyer in his

community and in his client relations as well as ad-

versely affect his ability to carry out his professional

functions, particularly if his branch of the law is trial

practice. Undoubtedly these factors played a part in

leading the Supreme Court to characterize disbarment

27

proceedings as being ‘of a quasi-criminal nature,’ In

re Ruffalo, 390 U.S. 544, 551, 88 S. Ct. 1222, 20 L. Ed.

2d 117 (1968).”

In Ex parte Garland, swpra, the statute involved was not

a criminal statute but one on all fours with Judiciary Law

90.4. It was a July 24, 1865 Congressional enactment

which, in effect, disbarred, ex post facto, attorneys who had

aided the Confederacy. The Court held that the statute

violated Art. I, Section 9.

It is clear, therefore, that the retroactive application to

petitioner of the Chu interpretation of Judiciary Law 90.4,

thus removing petitioner’s safeguards under Judiciary Law

90.2 and increasing the penalty to which he was subject,

violated petitioner’s Fourteenth Amendment rights as

established by the decisions of this Court.

b. Judiciary Law 90.4 on its face violates the due process

clause of the Fourteenth Amendment.

The automatic disbarment of an attorney upon his con-

viction of a felony is an arbitrary atavism having no place

in our law today. It violates every ordinary conception and

instinct as to due process and fairness.

It imposes a grievous, automatic punishment upon an

attorney without any inquiry or action by the court which

admitted him to practice and of which he is an officer. This

has been fully discussed above. ;

It unthinkingly imposes a penalty which has no neces-

sary relationship to the offense committed,

There are all kinds of crimes bearing the statutory label

of “felony” of various degrees of turpitude, and there are

all kinds of circumstances, mitigating the turpitude in-

volved, in which felonies can be committed.

Highlighting the illogicality and arbitrariness of the

statute is the fact that, until Cau, most federal conspiracy

convictions were not felonies under the statute, no matter

what the venality or turpitude involved, nor was tax fraud

within the statute. Attorneys convicted of such federal

felonies received penalties from the New York courts rang-

ing from censure, to suspension for varying periods, to

disbarment.

By Section 265.05 of the Penal Law of New York, it is

a felony to possess a firearm and ammunition outside one’s

home or place of business. An attorney could violate that

section for the most venal motives. But he could also vio-

late it for motives that might be considered praiseworthy:

for example, to protect a loved one from an imminent

threat of death or injury, there being neither the time nor

the means to ward off the threat in any other way.

Similarly, the convicted attorney might be one with a

long record of misconduct, indicating an incorrigibly bad

character, or he might be one with a long record of honor-

able service at the Bar, an exemplary private life, selfless

public service, and an outstanding reputation.

But, under Judiciary Law 90.4, regardless of the nature

or circumstances of the crime, regardless of the motive,

and regardless of the character and past record of the at-

torney involved, without any judicial inquiry or considera-

tion, judgment or action, the convicted attorney would

be summarily and automatically disbarred.

This type of brutal and unreasoning arbitrariness is, in

fact, one of the reasons why bills of attainder are pro-

scribed. The proscription of bills of attainder is part of

the Constitution as originally adopted; the Fifth Amend-

ment guarantee of due procese and of course the Four-

teenth Amendment, were adopted later. But any legislative

proscription, any bill of attainder, must also be considered

a violation of due process, precisely because it prevents

any judicial inquiry into the nature and circumstances of

the crime and into matters in explanation and mitigation.

The same principle would apply here as applies to e post

facto “judicial legislation.”

The revulsion inspired by the type of arbitrary proscrip-

tion imposed by Judiciary Law 90.4, and the recognition

of the necessity for judicial inquiry, evidence in mitiga-

tion and explanation, and a reasoned judicial fitting of the

penalty to the offense, runs like a red thread through all of

the authorities.

Thus, according to Henry Drinker, in his classic Legal

Ethics (1963 ed., p. 49):

“When a lawyer is disbarred it is because the court has

concluded after thoroughly investigating and con-

sidering the charges against him, as well as his ex-

planation of them and his past record as a lawyer and

a citizen... that he is not one who should be a mem-

ber of this honorable profession.”

One of the factors which motivated this Court, in Cum-

mings v. Missouri, supra, in concluding that the automatic

defrocking of a priest (or disbarment of an attorney) be-

cause he had rendered aid to the Confederacy was imper-

missibly arbitrary was this: that one might have rendered

aid to the Confederacy for different motives—for example,

out of love and loyalty to a father; and similar considera-

tions moved the Court in Eæ parte Garland, supra, to insist

that a lawyer can be disbarred only “by the judgment of

the court”,

In Randall v. Brigham, 74 U.S. (7 Wall.) 523, 540, 18

L.Ed, 285 (1869), the Court said that disciplinary proceed-

ings required “thet . . . notice should be given to the at-

torney, of the charges made, and an opportunity afforded

him for explanation and defense.”

In Schware v. Board of Bar Examiners, 353 U.S. 232,

246 (1957), the Court ruled that a state could not prevent

the admission of an applicant to the Bar (which is no dif-

ferent in principle from disbarring an attorney already,

admitted) except on the basis of evidence sufficient

“to raise substantial doubts about his present good moral

character” (emphasis added), “a record which rationally

justifies a finding that [he] was morally unfit to practice

law.” In that case, the Court also said (353 U.S, at 239

n.5):

“We need not enter into a discussion of whether the

practice of law is a ‘right’ or a ‘privilege’. Regardless

of how the State’s grant of permission to engage in

this occupation is characterized, it is sufficient to say

that a person cannot be prevented from practicing ex-

cept for valid reasons. Certainly the practice of law

is not a matter of the State’s grace.”

In the companion case of Konigsberg v. State Bar, 353

U.S. 252, 278 (1955), the Court said:

“(TJhere is no evidence in the record which rationally

justifies a finding that Konigsberg failed to establish

good moral character...”

Mr. Frankfurter, in his concurring opinion in Schware,

expressed the rule of the case as follows (353 U.S. at 249):

“Refusal to allow a man to qualify himself for the pro-

fession on a whoily arbitrary standard or on a con-

sideration which offends the dictates of reason offends

the Due Process Clause.”

31

In In re Ruffalo, 390 U.S. 544, 550 (1968), the Court said:

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

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

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

515. He is accordingly entitled to procedural due proc-

ess, which includes fair notice of the charge.“

In sum, “the power of the States to control the practice

of law cannot be exercised so as to abrogate federally pro-

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

(1969).

In Erdmann v. Stevens, supra, 458 F 2d at 1212, the court

said that the New York Court of Appeals “may not uphold

a finding of misconduct on the part of an attorney unless it

concludes that ‘no substantial legal right of the accused has

been violated.’ ”

“The ultimate issues [in a disciplinary matter are) the

character of the offense committed and the nature of the

penalty, if any, appropriately to be imposed.” Matter of

Levy, supra, 37 NY 2d at 282.

It is necessary to conclude from the foregoing and from

the authorities cited in previous sections of this petition,

that an attorney is entitled to a hearing before the court at

which he has the opportunity to present evidence in mitiga-

tion and explanation, and to have the penalty, if any is to

be imposed, determined by the court in the light of the evi-

dence, and that the imposed absence of any of these pre-

requisites violates due process. Judiciary Law 90.4 imposes

the absence of all of these prerequisites.

There is no reason, therefore, for surprise at the strong

language of the minority in Matter of Thies, supra, 45

NY 2d at 867, to the effect that Judiciary Law 90.4 is an

“inflexibly harsh rule [which sacrifices] fairness and rea-

son”, one which brings about “abberational [sic] results”.

Two federal cases deal directly with the question whether

automatic disbarment upon conviction of crime without a

hearing and without the fitting of the penalty to the offense

violates due process. In both cases the courts concluded

that it did. Matter of Ming, 469 F 2d 1352 (7th Cir. 1972)

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

In Ming, the United States District Court had summarily

suspended Ming, from practicing before it without a hear-

ing because of his conviction for failure to file federal in-

come tax returns. Ming appealed and the Seventh Circuit

reversed the order of the District Court, holding that auto-

matic suspension, without a hearing and without considera-

tion of matters in mitigation and explanation, violated due

process. The court said (469 F 2d at 1354):

“As an initial matter, we would not conceive that every

Tom, Dick and Harry of a misdemeanor would serve as

a basis for suspension. Secondarily, but conceivably of

genuine significance, there is the matter of the dura-

tion of the suspension. Extenuating circumstances

tending toward a minimization of the penalty very

probably would require a hearing for proper develop-

ment. Recently, in a case of parole revocation, the

Supreme Court held that the parolee had the right to

a hearing, with minimum due process requirements, in-

cluding the opportunity to be heard in person and

to confront and cross-examine adverse witnesses,

Morrisey v. Brewer, 408 U.S. 471, 92 Sup. Ct. 2593,

33 L. Ed. 2d 484 (1972). While in a hearing based on

a finalized conviction of a misdemeanor, an attorney

may not be allowed to reargue the merits of the convic-

tion, he would seem to have similar interests to those

of the parolee, or a person being sentenced for a crime,

to some hearing under due process. In such a situa-

tion, ‘a chance to respond’ must be equated to ‘the

opportunity to be heard’ which necessarily implies a

hearing. Appellant was not afforded such a hearing

and we find that this denial was a deprivation of due

process of law.”

In Jones, the Chief Judge of the United States District

Court for the Eastern District of Arkansas made an order

striking Jones’ name from the list of attorneys of that court

upon Jones’ conviction in that court of filing false income

tax returns, a felony. The Chief Judge acted summarily

and without any notice or hearin under a local rule, simi-

lar to Judiciary Law 90.4, that one convicted of a felony

“shall ipso facto be disbarred.” Jones appealed and the

Eighth Circuit reversed, again on the ground that the lack

of any hearing violated due process. The court said (506

F 2d at 529):

„[Wie remand the case with instructions that Jones be

permitted to present any evidence of mitigation, etc.,

that he desires. In the event the trial judge feels, after

a hearing, that the mitigating circumstances are 80

compelling that disbarment was not appropriate, he

may then amend his judgment by ordering suspension

or such other penalty as is deemed appropriate under

the circumstances.”

Finally, the following two circumstances must be noted.

This Court, the United States Supreme Court, has no

rule similar to Judiciary Law 90.4. No matter what the

offense of the attorney may be, he is, under Part II, Section

34

8, of the Rules, given the opportunity for a hearing at which

evidence in mitigation and explanation may be presented.

New York State has no statute barring convicted felons

from admission to the Bar. The matter is left in the hands

of the Appellate Division, which grants or denies admission

based upon the whole record as to character and fitness.

As a result, a flexible rule is followed. See: American Bar

Association, Commission on Correctional Facilities and

Services, Results of a Survey Inquiring into State Board

of Bar Examiners Policies Relating to Admission of Ex-

Offenders. The various departments of the Appellate Divi-

sion consider the circumstances surrounding the convic-

tion, the type of felony, the time elapsed since the convic-

tion, and the applicant’s behavior since the conviction. In

fact, according to the survey, there has been only one con-

victed felon who has applied for admission to the New York

Bar, and he was admitted. The fact that New York will, in

proper circumstances, admit a convicted felon to the prac-

tice of law, underlines the due process defect of Judiciary

Law 90.4.

To the extent that Hawker v. New York, 170 U.S. 189

(1879) and Ex parte Wall, 107 U.S. 265 (1882) are to the

contrary, and it is believed that properly read they are not,

they do not reflect present realities, they cannot be recon-

ciled with the extensive authority here marshalled, and they

should not be followed.

In conclusion, Judiciary Law 90.4 contravenes the fre-

quently expressed views of this Court, is a gross violation

of due process, and should be stricken down as a violation

of the Fourteenth Amendment.

35

3. The action of the New York courts in striking petitioner’s

name from the roll of New York attorneys violated peti-

tioner’s rights of due process under the Fourteenth Amend-

ment to the Constitution of the United States.

The sole constitutional justification for the action of the

New York courts in striking petitioner’s name from the roll

of New York attorneys was petitioner’s automatic disbar-

ment by reason of Judiciary Law 90.4 as interpreted by

Matter of Chu, supra. Since, as has been demonstrated

above, that disbarment was constitutionally invalid, the

order striking petitioner’s name from the rolls had no con-

stitutional justification and violated petitioner’s Four-

teenth Amendment rights of due process.

CONCLUSION

For the reasons stated above, this petition for certiorari

should be granted.

Respectfully submitted,

Joun G. Bonomi

630 Fifth Avenue

New York, N. Y. 10020

(212) 397-9751

Attorney for petitioner

Saul. FRrepsBero

402 South Country Road

Brookhaven, N. T. 11719

Of counsel

APPENDIX

Order of Court of Appeals Entered October 19, 1978

STATE OF NEW YORK,

COURT OF APPEALS

At a session of the Court, held at Court of

Appeals Hall in the City of Albany on

the nineteenth day of October A. D.

1978.

Present,

Hon. CRHARLAS D. Burri,

Chief Judge, presiding.

Mo. No. 822

<>

In the Matter of Franx J. Brasco, an Attorney and

Counselor-at-Law

Tue Jomnt Ban Association Grievance CoMMITTEE FOR

tHE Sreconp anp ExveventH Jvupiciat Districts,

Respondent,

Frank J. Brasco,

Appellant.

—

A motion for leave to appeal to the Court of Appeals

in the above cause having heretofore been made upon the

part of the appellant herein and papers having been sub-

mitted thereon and due deliberation having been thereupon

had, it is

Onpzrep, that the said motion be and the same hereby

is denied.

/s/ Joa n W. BNALA OO.

Joseph W. Bellacosa

Clerk of the Court

2a

Order of the Appellate Division Dated April 3, 1978

At a Term of the Appellate Division of the

Supreme Court of the State of New

York, Second Judicial Department,

held in Kings County on April 3, 1978.

Present,

Hon. James D. Hopkins,

Justice Presiding,

How. Henry J. Laruam,

Hon. Joszrn A. Svozzt,

Hon. Saul, Ran,

Hon. J. Inwin Snarmo,

Associate Justices.

— i —--

In the Matter of Feanx J. Brasco, an attorney and coun-

selor-at-law, admitted under the name Franx James

Brasco.

Tue Joist Ban Association Grievance CoMMITTEE FOR

tHE SRO AND Exvzvento Jupician Disrntors,

Petitioner,

Respondent.

Frank J. Brasco,

>

In the above entitled disciplinary proceeding, the above-

named The Joint Bar Association Grievance Committee for

the Second and Eleventh Judicial Districts, petitioner, hav-

ing moved, by a notice of motion dated December 27, 1977,

to strike the name of the respondent Frank J. Brasco, an

attorney and counselor-at-law, admitted to practice by this

court on March 26, 1958 under the name Frank James

Brasco, on the ground that the said respondent has been

3a

disbarred by virtue of a felony conviction (violation of US

Code, tit. 18, § 371) unlawfully, willfully and knowingly

conspired, confederated and agreed with others to obtain

and retain from the Post Office Department truck leases

and monies payable by unlawful and fraudulent means in

violation of statute in the United States District Court for

the Southern District of New York on October 21, 1974;

and the respondent having cross moved, by an order to

show cause dated January 19, 1978, to stay all proceedings

in this matter pending determination of the post-conviction

proceedings in the United States District Court for the

Southern District of New York to vacate the said convic-

tion and for a new trial on the grounds of newly discovered

evidence;

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

Nicholas C. Cooper in support of petitioner’s motion, the

affirmation of Michael Rosen and the affidavits of John G.

Bonomi and Frank J. Brasca and the exhibits annexed

thereto and respondent’s memorandum in opposition

thereto; the said order to show cause and the affirmation of

Michael Rosen the exhibits annexed thereto in support of

respondent’s cross motion and the affidavit of Nicholas C.

Cooper in opposition thereto and in further support of peti-

tioner’s motion; and Nicholas C. Cooper, Esq., having ap-

peared of counsel for the petitioner and John G. Bonomi,

Esq., 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

unanimously

Orperep that the petitioner’s motion is hereby granted,

and it is further

Orperep that the respondent’s cross motion is hereby

denied, and it is further

4a

Orperep that, effective April 3, 1978, the name of the

respondent Frank J. Brasco, admitted under the name

Frank James Brasco, is hereby struck from the Roll of At-

torneys and Counselors-at-Law by reason of said conviction

(Matter of Chu, 42 NY2d 490), and it is further

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

the said Frank J. Brasco, admitted under the name Frank

James Brasco, is hereby commanded to desist and refrain:

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

principal, or as attorney or counselor-at-law before any

judge, justice, board, commission or other public authority ;*

(3) from giving another an opinion as to the law or its ap-

plication or any advice in relation thereto; and (4) from

holding himself out in any way as an attorney or counselor-

at-law, and it is further ti

Orperep and born that the said Frank J. Brasco, ad-

mitted under the name of Frank James Brasco, shall com-

ply with this court’s rules governing the conduct of dis-

barred, suspended or resigned attorneys—a copy of such

rules being annexed hereto and made a part hereof.

Enter:

InvIxd N. SxLxix

Clerk of the Appellate Division.

*No “(2)” in original.

o

5a

ANNEXED DECISION SLIP

In the Matter of Frank J. Brasco, an attorney and coun-

selor-at-law, admitted to practice under the name Frank

James Brasco.

No. 179

Motion by the Joint Bar Association Grievance Committee

for the Second and Eleventh Judicial Districts, to strike the

name of Frank James Brasco from the roll of attorneys and

counselors-at-law on the ground that he has been disbarred

by virtue of a felony conviction.

No. 379

Cross motion to stay all proceedings in this matter pend-

ing determination of the post-conviction proceedings in the

United States District Court for the Southern District of

New York to vacate the conviction and for a new trial on

the grounds of newly discovered evidence.

Motion granted and cross motion denied. Frank J. Brasco,

admitted to practice by this court on March 26, 1958 under

the name Frank James Brasco, was convicted of a felony

(violation of US Code, tit. 18, § 371) unlawfully, willfully

and knowingly conspired, confederated and agreed with

others to obtain and retain from the Post Office Department

truck leases and monies payable by unlawful and fraudu-

lent means in viclation of statute in the United States Dis-

trict Court for the Southern District of New York on Oc-

tober 21, 1974.

The clerk of this court is directed to strike the name of

Frank James Brasco from the roll of attorneys and coun-

selors-at-law forthwith by reason of said conviction (Mat-

ter of Chu, 42 NY2d 490).

Horkixs, J.P., Larnam, Suozzt, Rasiw and Snarmo, JJ.,

concur.

April 3, 1978 In Re Brasoo, Frank J. Nos. 179

379

6a

RULES

SUPREME COURT—APPELLATE DIVISION

Seconp Jupicia, DepaRTMENT

691.10 Conduct of disbarred, suspended or resigned at-

torneys. (a) Compliance with Judiciary Law. Disbarred,

suspended or resigned attorneys at law shall comply fully

and completely with the letter and spirit of sections 478,

479, 484 and 486 of the Judiciary Law relating to practicing

as attorneys at law without being admitted and registered,

and soliciting of business on behalf of an attorney at law

and the practice of law by an attorney who has been dis-

barred, suspended or convicted of a felony.

(b) Compensation. A disbarred, suspended or resigned

attorney may not share in any fee for legal services per-

formed by another attorney during the period of his re-

moval from the bar. A disbarred, suspended or resigned

attorney may be compensated on a quantum meruit basis

for legal services rendered and disbursements incurred by

him prior to the effective date of the disbarment or sus-

pension order or of his resignation. The amount and man-

ner of payment of such compensation and recoverable dis-

bursements shall be fixed by the court on the application

of either the disbarred, suspended or resigned attorney or

the new attorney, on notice to the other as well as on notice

to the client. Such applications shall be made at special

term in the court wherein the action is pending or at special

term in the Supreme Court in the county wherein the mov-

ing attorney maintains his office if an action has not been

commenced, In no event shall the combined legal fees

exceed the amount the client would have been required to

pay had no substitution of attorneys been required.

7a

(o) Notice to clients not involved in litigation. A dis-

barred, suspended or resigned attorney shall promptly

notify by registered or certified mail, return receipt re-

quested, all clients being represented in pending matters,

other than litigated or administrative matters or proceed-

ings pending in any court or agency, of his disbarment,

suspension or resignation and his consequent inability to

act as an attorney after the effective date of his disbar-

ment, suspension or resignation and shall advise said clients

to seek legal advice elsewhere. }

(d) Notice to clients involved in litigation. (1) A dis-

barred, suspended or resigned attorney shall promptly

notify, by registered or certified mail, return receipt re-

quested, each of his clients who is involved in litigated mat-

ters or administrative proceedings, and the attorney or at-

torneys for each adverse party in such matter or proceed-

ing, of his disbarment, suspension or resignation and con-

sequent inability to act as an attorney after the effective

date of his disbarment, suspension or resignation. The

notice to be given to the client shall advise of the prompt

substitution of another attorney or attorneys in his place.

(2) In the event the client does not obtain substitute

counsel before the effective date of the disbarment, suspen-

sion or resignation, it shall be the responsibility of the dis-

barred, suspended or resigned attorney to move pro se in

the court in which the action is pending, or before the body

in which an administrative proceeding is pending, for leave

to withdraw from the action or proceeding.

(3) The notice given to the attorney or attorneys for an

adverse party shall state the place of residence of the

client of the disbarred, suspended or resigned attorney.

In addition, notice shall be given in like manner to the

8a

Office of Court Administration of the State of New York in

each case in which a retainer statement has been filed.

(e) Conduct after entry of order. The disbarred, sus-

pended or resigned attorney, after entry of the disbarment

or suspension order or after entry of the order accepting

the resignation, shall not accept any new retainer or en-

gage in any new case or legal matter of any nature as

attorney for another. However, during the period between

the entry date of the order and its effective date he may

wind up and complete, on behalf of any client, all matters

which were pending on the entry date.

(f) Filing proof of compliance and attorney’s address.

Within 10 days after the effective date of the disbarment

or suspension order or the order accepting the resignation,

the disbarred, suspended or resigned attorney shall file

with the Clerk of the Appellate Division for the second

judicial department an affidavit showing:

(1) that he has fully complied with the provisions of the

order and with these rules; and

(2) that he has served a copy of such affidavit upon the

petitioner or moving party.

Such affidavit shall also set forth the residence or other

address of the disbarred, suspended or resigned attorney

where communications may be directed to him.

(g) Appointment of attorney to protect clients’ interests

and interests of disbarred, suspended or resigned attorney.

Whenever it shall be brought to the court’s attention that a

disbarred, suspended or resigned attorney shall have failed

or may fail to comply with the provisions of subdivisions

(e), (d) or (f) of this section, this court, upon such notice

to such attorney as this court may direct, may appoint an

9a

attorney or attorneys to inventory the files of the dis-

barred, suspended or resigned attorney and to take such

action as seems indicated to protect the interests of his

clients and for the protection of the interests of the dis-

barred, suspended or resigned attorney.

(h) Disclosure of information. Any attorney so ap-

pointed by this court shall not be permitted to disclose any

information contained in any file so inventoried without the

consent of the client to whom such file relates except as

necessary to carry out the order of this court which ap-

pointed the attorney to make such inventory.

(i) Fixation of compensation. This court may fix the

compensation to be paid to any attorney appointed by it

under this section. The compensation may be directed by

this court to be paid as an incident to the costs of the pro-

ceeding in which the charges are incurred and shall be

charged in accordance with law.

(j) Required records. A disbarred, suspended or re-

signed attorney shall keep and maintain records of the

various steps taken by him under this Part so that, upon

any subsequent proceeding instituted by or against him,

proof of compliance with this Part and with the disbarment

or suspension order or with the order accepting the resig-

nation will be available.

10a

Order of the Appellate Division Dated June 9, 1978

At a Term of the Appellate Division of the

Supreme Court of the State of New

York, Second Judicial Department, held

in Kings County on June 9, 1978.

Hon. James D. Horxixs,

Justice Presiding,

Hon. Henry J. Latuam,

Hon. Josepn A. Svozzi,

How. Samvuet Rasy,

How. J. Inwiy Sgarmo,

Associate Justices.

>

In the Matter of Frawx J. Brasco, an attorney and coun-

selor-at-law, admitted under the name Frank James

Brasco,

Tae Jomwr Bar Association Grievance CoMMITTEE FOR

THE Szeconp AND Exveventa Jvupiciat Districts,

Petitioner;

Frank J. Brasco,

Respondent.

—

In the above entitled disciplinary proceeding, this court,

by an order dated April 3, 1978, having directed, inter alia,

that the respondent’s name be struck from the Roll of At-

torneys and Counselors-at-law; and the respondent having

moved, by a notice of motion, dated May 10, 1978, for leave

to appeal to the Court of Appeals from the said order dated

April 3, 1978;

lla

Now, upon reading and filing the said notice of motion,

the affidavit of John H. Bonomi and respondent’s memoran-

dum of law in support of the said motion, the affidavit of

Nicholas C. Cooper in opposition thereto, the affidavit of

John H. Bonomi in reply thereto; and upon all the papers

filed herein; and John H. Bonomi, Esq., having appeared

of counsel for the respondent and Nicholas C. Cooper, Esq.,

having appeared of counsel for the petitioner, due delibera-

tion having been had thereon; and upon this court’s de-

cision slip heretofore filed and made a part hereof, it is

Orperep that the said motion is hereby denied.

Enter:

Irvine N. Sevxin

Clerk of the Appellate Division.

12a

ANNEXED DECISION SLIP

No. 2916

>

In the Matter of Franx J. Brasco, an

attorney and counselor-at-law.

Tse Jornt Bar Association GrizvaNce CoMMITTEE FOR

THE SECOND AND ELeEveNTH JupiciaL Districts,

Petitioner;

Frank J. Brasco,

Respondent.

a cael

Motion by respondent for leave to appeal to the Court of

Appeals from an order of this court entered April 3, 1978,

which, inter alia, directs that respondent’s name be struck

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

Motion denied.

Hopkins, J.P., Lar HA, Svozz1, Ran and Suarmo, J.,

concur.

June 9, 1978 In Re Brasco, Frank J. No. 2916

, (Jom Ban Assoc. GnIxv. Comm.

ron Seconp AND ELEvENTH Jub.

Distr. ; Brasco)