Petition — Heavrin v. Kentucky Bar Ass'n

FILED

“ Sup: ine Co t, U. & ] \

MAR 31 1979 |

4 4

'

_MICHAB, RODAK, IR. CLERK

ESE eee a now |

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1978

No. €8-1497

DONALD M. HEAVRIN - - - ~- Petitioner

versus

KENTUCKY BAR ASSOCIATION - -_ Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF KENTUCKY

HENRY ARMSTRONG TRIPLETT

HOGAN, TAYLOR, DENZER & BENNETT

231 S. Fifth St., Third Floor

Louisville, Kentucky 40202

Counsel for Petitioner, Donald M. Heavrin

WESTERFIELD-BONTE CO., 619 W. KENTUCKY-P.O. BOX 3251, LOUISVILLE, KY.

i we wbleeweee iii

INDEX

Petition for Writ of Certiorari....................

Opinions and Orders Below.......................

a ee ei cabs chan kates «bees

Statement. of Questions Presented.................

Provision of Constitution Involved................

Time and Place When Questions Were First Raised

ee edie, pigs okc a kbwese0e’

ee sd ce wweeevecsee

Reasons for Granting the Writ....................

I. The Failure of the KBA to Provide Petitioner

II.

With Actual Copies of the Complaints Filed

Against Him Denied Him Due Process of Law

and Because the Actual Charges Filed Against

Him Did Not Specify the Precise Section of the

Code of Professional Responsibility and Because

Petitioner Had Been Found Blameless by Two

Fact Finders Which Heard the Evidence and

Saw the Witnesses and When the Board of

Governors for the KBA and the S. Ct. of Ky.

Reversed the Findings of the Two Fact Finders

Without Seeing or Hearing the Petitioner or the

Witnesses or Stating Any Ground for Disagree-

ment With the Previous Fact Finders, Peti-

tioner’s Fundamental Right to Due Process of

Law and Equal Protection of the Law Was

a or Sa oe ak whee One ass 6das dcecees

There Must Be Some Objective Standard Before

the Mandate of Due Process-Equal Protection Is

I Fee bad cia eon bar cedevesee dacs

14-21

21-22

PAGE

III. Before an Attorney’s License Can Be Suspended

He Must Be Guilty of Some Wrong Doing...... 22-26

0s ava ss ae Rihe canes KALE A whe hc eap eu 27-29

ED ik vse bebe Ceswndae iaedes'y a y's 30

Appendix (Separate)

TABLE OF AUTHORITIES

State and Federal Cases: PAGE

Kentucky Bar Association v. Heavrin, Ky., 573

ras ha wn bose wee ek ah ba oA 04h 88 1

Kentucky State Bar Association v. Donoghoe, Ky.,

oS Ee Aree er ee

Kentucky State Bar Association v. Donoghoe, Ky.,

i es & & oa ere ere 6

In Re: Ruffalo, 390 U. S. 544, 20 L. Ed. 2d 117, 88

ie ts, Maree ks oss's bas eetbasves’ 14-15, 18-20

Johnson v. Avery, 393 U. S. 483, 21 L. Ed. 2d 718,

te. Cia duns bainebanedenkaeeKaakess 15

Spevak v. Klein, 385 U. S. 511, 17 L. Ed. 2d 574, 87

NSS SEEN Lines oeNV NSS teak seat ebaces 15

Schware v. Bd. of Bar Examiners, 353 U. S. 232, 1

L. Ed. 2d 796, 77 S. Ct. 752........ oe ee 15

Konigsberg v. State Bar of California, 353 U. S.

252, 1 L. Ed. 2d 810, 77 S. Ct. 722............. 15, 22

Willner v. Committee on Character and Fitness, 373

U. S. 96, 10 L. Ed. 2d 224, 83 S. Ct. 1175....... 15-16

Getty v. Reed, 547 F. 2d 971, CA 6 Ky. 1977....... 20

Osborne v. Bullitt Co. Bd. of Ed., Ky., 415 S. W.

EE Ue iaundah Cee sak CSOKa deh eab OKRA ean 68 21-22

Armstrong v. Bd. of Civil Service Commission, Ky.,

gk Se RC er ey ee 22

Hartman v. Bd. of Ed. of Jeff. Co., Ky., App., 562

ee gat eh kg cac CAN GACE RCS 088 22

Ky. Bar Association v. Burroughs, decided Febru-

es a EE Eh kc aye sa vaenss scuesnes 25

Thompson v. City of Louisville, 362 U. S. 199, 4

Bi es ee I, ie bc Kaccncecleccesens 26

Pankey v. Commonwealth, Ky., 485 S. W. 2d 513.... 28

Laing v. United States, 423 U. S. 161, 46 L. Ed. 2d

eet ie ea ven cae sdbeeens 28

Provision of Constitution:

Amendment XTV, Section 1, United States Constitu-

Eee ee We Cade d a yW46 COGS ONES CO nes 4,15

gt rere Tere ree Tere T eee 3

iv

Rules:

Rule 3.160(a), Supreme Court of Kentucky........ 5

Former RCA 3.160, Initiation of Disciplinary Cases 5, 14

SUPREME COURT OF THE UNITED STATES

October Term 1978

No.

DonaLp M. HEAVRIN - - - - Petitioner

Vv.

KENTUCKY Bar ASSOCIATION - - Respondent

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF KENTUCKY

The petitioner, Donald M. Heavrin, respectfully

prays that a writ of certiorari issue to review the de-

cision in this case on January 3, 1979, by the Supreme

Court of Kentucky. (Mandate, Appendix, p. 37-39).

OPINIONS AND ORDERS BELOW

The Supreme Court of Kentucky ordered the pe-

titioner, Donald M. Heavrin, suspended from the prac-

tice of law for a period of two years. The original

opinion of the Supreme Court of Kentucky was ren-

dered October 31, 1978, and is found on pages 1-25 of

the Appendix.’ The Court will note that the opinion

is not unanimous and that the Chief Justice joined in

by one other Justice vigorously dissented. The peti-

1Kentucky Bar Association v. Heavrin, Ky., 573 8. W. 2d 916.

2

tioner, Donald M. Heavrin, timely petitioned the Su-

preme Court of Kentucky for a rehearing, and this

petition was denied on January 3, 1979. (Appendix,

pp. 37-38). An order staying the execution of the man-

date was entered by the Supreme Court of Kentucky

on January 8, 1979. (Appendix, p. 26).

The decision of the Supreme Court of Kentucky

resulted from certain findings of the Board of Gover-

nors of the Kentucky Bar Association and these Find-

ings are contained in the opinion of the Supreme Court

of Kentucky, pages 2 through 9. The Trial Committee

of the Kentucky Bar Association, which originally

heard the charges against the petitioner, Donald M.

Heavrin, rendered two opinions. The first opinion by

a vote of 2 to 1 recommended that all charges against

the petitioner be dismissed because the respondent,

Kentucky Bar Association, had not complied with its

own rules and, accordingly, the petitioner was denied

due process. This opinion and dissent is found on

page 31 of the Appendix.

The second opinion of the Trial Committee unani-

mously recommended that all charges against the peti-

tioner be dismissed and this opinion is found on page 34

of the Appendix.

A companion civil case was involved in these pro-

ceedings. This case was styled Citizens Fidelity Bank

and Trust Company v. Donald M. Heavrin, et al., Jef-

ferson Circuit Court, Chancery Branch, Second Divi-

sion, #174698, Hon. James Hubbs presiding. Judge

Hubbs rendered an opinion in this case exonerating the

petitioner from any wrong doing. Judge Hubb’s Find-

3

ings of Fact and Conclusions of Law are found on page

38 of the Appendix.

The Appendix also includes certain excerpts from

briefs filed by the respondent, Kentucky Bar Associa-

tion, before the Supreme Court of Kentucky and cer-

tain excerpts from a pre-trial discussion held on March

10, 1977, before the Trial Committee.

JURISDICTION

The judgment of the Supreme Court of Kentucky

was entered on January 3, 1979. This Petition for Writ

of Certiorari was filed within 90 days of January 3,

1979. This Court’s jurisdiction is invoked under 28

U.S.C. 1254(1).

STATEMENT OF QUESTIONS PRESENTED

I. Did the respondent, Kentucky Bar Association,

and the Supreme Court of Kentucky deny the peti-

tioner, Donald M, Heavrin, due process of law and

equal protection of the law when it did not provide the

petitioner, Donald M. Heavrin, with copies of the orig-

inal complaints as required by the Rules of the Supreme

Court of Kentucky relating to bar disciplinary pro-

cedures?

II. Did respondent, the Kentucky Bar Association,

and the Supreme Court of Kentucky deny the peti-

tioner, Donald M. Heavrin, due process of law and equal

protection of the law when vague charges, without

citation of specific disciplinary rules, were made against

the petitioner, Donald M. Heavrin, and in reversing

4

findings of fact made by the lawfully appointed Trial

Committee and by a State Circuit Judge without stating

any reason for doing so?

PROVISION OF CONSTITUTION INVOLVED

The Constitution provision relative to the issues in

this case is Amendment XIV, Section 1, United States

Constitution:

‘‘Nor shall any state deprive any person of life,

liberty or property, without due process of law;

nor deny to any person within its jurisdiction the

equal protection of the law.”’

TIME AND PLACE WHEN QUESTIONS

WERE FIRST RAISED BELOW

Question #1 relative to not having a copy of the

® actual compiaints was raised in response to the cor-

respondence from the KBA and before the Trial Com-

mittee of the Bar Association. (Appendix, pp. 49-50).

Question #2 was raised at the beginning, as noted by

Chief Justice Palmore (Appendix, p. 21), ‘*. . . it

makes me think that perhaps Heavrin had been right

all along in insisting that from the beginning the

charges were never sufficient.’’ See also Appendix, pp:

23 and 24, dissent of Chief Justice Palmore. It was

also raised in the answer to the formal charges (Appen-

dix, p. 64).

STATEMENT OF THE CASE

At all times material, the petitioner, Donald M.

Heavrin, hereafter referred to as Heavrin, was a duly

licensed and regularly practicing attorney within the

Commonwealth of Kentucky and a member of the bar

of this Court.

He was charged with seven counts of unethical con-

duct by the respondent, Kentucky Bar Association,

hereafter referred to as KBA.

At the time this controversy arose and now, Ken-

tucky had an integrated Bar act. All and final author-

ity was vested in the Supreme Court of Kentucky. So

that this Court will not be confused, the Commonwealth

of Kentucky, by constitutional amendment, changed its

court structure during the pendency of these proceed-

ings. Formerly, the Court of Appeals of Kentucky was

the highest court whereas now it is the Supreme Court

of Kentucky, and the Court of Appeals of Kentucky is

an intermediate court between the Circuit Court and

the Supreme Court. The Circuit Court is the trial court

and is one of general jurisdiction. The Supreme Court

of Kentucky will hereafter be referred to as S. Ct. of

Ky. |

The S. Ct. of Ky. has established the method and

procedure for processing charges of unethical conduct

against lawyers.

According to Rule 3.160(a) (hereafter SCR) of the

Supreme Court of Kentucky (Appendix, p. 30), a dis-

ciplinary action is commenced when an aggrieved party

files a complaint with the Executive Director of the Bar

6

Association. Upon receipt of the complaint the Execu-

tive Director is required to notify the attorney, who is

in turn given fifteen days to either respond to the com-

plaint or acknowledge receipt of the complaint.

When the attorney responds, his answer along with

the complaint is forwarded to a body known as the In-

quiry Tribunal.

The Inquiry Tribunal either dismisses the complaint

or files charges against the attorney.

If the Inquiry Tribunal files charges the case is re-

ferred to a Trial Committee who hears evidence and files

its findings with the Board of Governors of the Ken-

tucky Bar Association. The Board of Governors with-

out hearing any witnesses or receiving any evidence

then votes at its monthly meeting on the innocence or

guilt of the accused, and recommends punishment, if

any.

If the accused is dissatisfied with the findings and

the recommendations of the Board of Governors, he

may petition the Supreme Court of the state for review.

Now, let us examine the facts of this case in light

of the Kentucky Disciplinary Rules.

The true center of controversy in this case is James

F. Donoghoe, a former client of Heavrin’s. At the

time Donoghoe employed Heavrin, he was a licensed

practicing attorney in the state. He has subsequently

been disbarred and sentenced to the penitentiary for

forging his client’s names to settlement checks. Ken-

tucky State Bar Association v. Donoghoe, Ky., 486

S. W. 2d 703; Kentucky Bar Association v. Donoghoe,

Ky., 497 S. W. 2d 937. However, in 1972 when Heavrin

7

was representing Donoghoe, none of this information

had come to light.

At the outset, Donoghoe hired Heavrin to represent

him in a ease that was before the Jefferson Quarterly

Court where a client of Donoghoe’s had taken a war-

rant against him for writing a worthless check in the

amount of Three Thousand Dollars. Heavrin had not

previously known Donoghoe and took the case because

Mr. Frank Haddad, a member of the Board of Gover-

nors, and later the President of the KBA, referred the

ease to him. In the case before the Jefferson Quarterly

Court, Donoghoe had entered into an agreement with

his clients wherein they loaned Donoghoe a portion of

the proceeds of an accident settlement. Donoghoe in

turn agreed to pay his clients nine percent on the money

with the understanding that he would pay them the

balance on demand or make installment payments when

his clients needed additional money. His clients who

lived in Pennsylvania requested a Three Thousand

Dollar payment and when Donoghoe’s check was re-

turned marked ‘‘drawn on uncollected funds’’ the

Pennsylvania clients, believing they had been hood-

winked obtained a warrant for his arrest.

There was a controversy about the terms and condi-

tions of the agreement between Donoghve and his Penn-

sylvania clients, but Heavrin advised Donoghoe he was

not interested in contesting or enforcing the agreement,

and stated he would not represent him unless he paid

the people in Pennsylvania in full, (Appendix, p. 68).

When the ease of uttering a worthless instrument

was called in the Jefferson Quarterly Court, Donoghoe

8

paid his Pennsylvania clients Three Thousand Dollars

in cash to cover the check that was the gravamen of the

criminal prosecution, however, the clients demanded

payment of all monies they had loaned Donoghoe. The

Quarterly Court case was continued various times so

Donoghoe could raise the money to pay his clients in

full. Ultimately, the charges were dismissed because

Donoghoe made restitution.

However, at the time the clients demanded full pay-

ment Donoghoe did not have any cash, but he had sub-

stantial assets and in order to raise the money necessary

to satisfy most of this claim he sold Heavrin his per-

sonal jewelry valued at approximately One Hundred

Thousand Dollars, with the provision he could repur-

chase the jewelry within thirty days. Donoghoe had

several important cases pending that would generate

enough money to enable him to repurchase his jewelry

from Heavrin, and it was only a matter of time until

Donoghoe would be in the black and have enough

money to satisfy all of his creditor’s claims (Appendix,

p. 16).

Several weeks after Heavrin purchased the jewelry

from Donoghoe, Donoghoe unexpectedly found Heavrin

at the courthouse and gave him a check for Forty Nine

Thousand Dollars drawn on his personal account to

cover Heavrin’s fee and to repurchase the jewelry

(Appendix, p. 17).

On the way back to the office, Heavrin went to the

bank and deposited the check. Shortly thereafter,

Donoghoe came to his office and told Heavrin that his

wife had written checks on his personal account to pay

other creditors and he asked Heavrin to give him his

9

check back. When Heavrin advised Donoghoe he had

already deposited the check, Donoghoe become very

excited because this would cause the checks his wife

had written to bounce.

Because Donoghoe had other money coming in

within a few days, Heavrin not wanting to cause Don-

oghoe any further embarrassment, wrote a check to

set aside Donoghoe’s original check. Both of these

checks were ultimately returned because they were

‘‘drawn on uncollected funds.’’ Without explanation,

the Kentucky Bar Association held this transaction

caused the bench and bar to be held in disrepute.

A day or two later, Donoghoe received a check in

the amount of One Hundred and Five ($105,000.00),

which represented a partial settlement of a case where

he was the executor of an estate, and the attorney for

other individuals who had been injured in an auto-

mobile accident. Upon reecipt of this check, Donoghoe

contacted Heavrin and had him meet him at the bank

so Donoghoe could cash the check and repay Heavrin.

The unecontroverted proof was that at the time this

transaction oceurred Heavrin believed that Donoghoe

was entitled to fifty percent of the amount recovered or

Fifty Two Thousand, Five Hundred Dollars ($52,500)

as his attorney’s fee in the case (Appendix, p. 70).

When Heavrin and Donoghoe arrived at the bank,

Donoghoe’s bank refused to cash the check telling him

that it could not be honored because it was ‘‘drawn on

uncollected funds.”’

Heavrin then took the check to his bank, cashed it

and got Eleven Thousand Dollars ($11,000) which he

10

gave to Donoghoe, so that Donoghoe could provide his

clients with the immediate cash they needed (Appen-

dix, p. 17).

Heavrin also wrote Donoghoe a check for the money

he and the other payees had coming so Donoghoe could

pay his clients the balance of the money he owed them.

The rest of the money which constituted Donoghoe’s

fee was given to Heavrin by Donoghoe to repurchase

the jewelry, to enable Heavrin to forward the balance

owed by Donoghoe to his Pennsylvania clients, and to

pay off other general creditors of Donoghoe’s who were

pressing for payment. Because Heavrin maintained

his escrow account at the Bank of Louisville which was

several blocks away, with Donoghoe’s consent he tem-

porarily deposited these funds in his personal account

so that he would not have to walk across town with

$40,000.00 cash in his pocket. Heavrin’s client (Dono-

ghoe) was present during these entire proceedings and

authorized Heavrin to take every step that was taken.

Upon Heavrin’s arrival back at his office he wrote a

check on his persenal account so the money could be

transferred to escrow. From these facts, the KBA held

that Heavrin had unethically commingled Donoghoe’s

funds with his own.

The KBA also held that Heavrin made a misrepre-

sentation to Mrs. Collie, an officer at his bank, about

the authenticity of the endorsements. This conclusion

will be discussed in greater detail.

Although the check that Heavrin cashed was fully

endorsed, certified and completely negotiable under the

Uniform Commercial Code as adopted by the State of

11

Kentucky, the KBA found that Heavrin was guilty of

not protecting the other payees of the check because he

cashed the check and delivered the proceeds to Donog-

hoe. Without citing any canon, case or precedent the

KBA concluded that this held the Bench and Bar in

disrepute. |

The transactions concerning the cashing of this

check occurred on Friday. Although no one in the

banking community bothered to tell Heavrin about the

situation, serious questions have been raised about the

authenticity of the endorsements on this day. Finally,

on Monday, Heavrin’s bank refused to honor any

checks drawn on the Ninety Four Thousand Dollars

($94,000) that remained in Heavrin’s account, and the

executive vice-president of Citizens Fidelity Bank,

Dan Ulmer, called Heavrin and told him for the first

time there was a question about the validity of the en-

dorsements. Heavrin responded by calling Donoghoe

and demanding an explanation (Appendix, p. 69).

Donoghoe assured him that the endorsements were

valid. Heavrin called the bank back and gave the vice-

president the names, addresses and phone numbers of

all payees he could remember, so the bank could make

an independent investigation for itself. This fact

weighed heavily in the Circuit Court’s decision concern-

ing who caused the loss (Judge Hubb’s opinion, Appen-

dix, pp. 38-39).

Later in the day, the vice-president of the bank

called Heavrin back and told him that he had personally

checked the endorsements, everything was okay and

checks drawn against the money would be honored (Ap-

pendix, pp. 38-39).

12

Nine months later the bank discovered the endorse-

ments had been forged by Donoghoe and sued Heavrin

and the other payees of the check in a declaratory judg-

ment action. The other payees whose endorsements

were forged by Donoghoe did not crossclaim or file suit

against Heavrin.

After a full-blown trial which lasted several days,

the Circuit Court held that Heavrin had nothing to do

with the forgeries and the loss was caused by the bank’s

own negligence (Appendix, 38-39).

_ While the declaratory judgment action was pend-

ing the director of the Kentucky Bar Association sent

Heavrin a letter dated August 15, 1973 (Appendix, p.

41), stating a complaint had been filed against him,

but there was no complaint in the envelope with the

director’s letter. Pursuant to SCR 3.180, a disciplinary

proceeding can be deferred if the same issues are before

a court of competent jurisdiction. In the instant case,

the KBA action was held in abeyance. The Circuit

Court rendered its opinion and Heavrin through his

attorney sent a cover letter to the KBA along with a

copy of the opinion (Appendix, p. 62).

At this point, it should be observed that the SCR

3.170 provides that the Director shall forward the com-

plaint and answer to the Inquiry Tribunal and the

Tribunal can either dismiss the complaint or file

charges. There are no provisions in the rules for addi-

tional investigation or expansion of the charges.

Apparently, neither of these steps were taken be-

eause Heavrin never heard anything from the Inqury

Tribunal. However, nine months later the Directcr of

13

the Bar Association in June, 1976, sent Heavrin another

letter in which he repeated the allegations contained in

the first letter, and made several new allegations (Ap-

pendix, p. 64). Again, he did not enclose a copy of any

complaint that had been filed.

On June 21, 1976, Heavrin answered the letter, pro-

tested the missing complaint, and alleged that there

were no objective standards in determining either guilt

or punishment in a Bar Disciplinary proceeding (Ap-

pendix, p. 64). This time, the Inquiry Tribunal

charged Heavrin and a Trial Committee was appointed.

The Trial Committee after receiving briefs and hearing

arguments of counsel held two to one that the Kentucky

Bar Association did not follow its own rules and had

denied Heavrin due process by not furnishing him a

copy of the complaint (Appendix, pp. 31-33).

After the Trial Committee recommended the charges

be dismissed because of the denial of due process, the

Board of Governors remanded the case to the Trial

Committee for recommendation on the merits and the

Trial Committee found the petitioner not guilty by a

vote of three to nothing on all charges (Appendix, pp.

34-36).

Thereafter the Board of Governors at its monthly

meeting voted, Heavrin guilty on four of the seven

charges that were filed against him.

Heavrin petitioned the Supreme Court of Kentucky

for review, and the majority of the court affirmed the

findings of the Board of Governors with two Justices

dissenting.

14

REASONS FOR GRANTING THE WRIT

I. Failure of Due Process

At the outset the KBA sent Heavrin a letter dated

August 15, 1973 (Appendix, pp. 41-43), and the letter

- said, ‘‘ Please accept this letter as a notice of a complaint

filed against you pursuant to the provisions of RCA

3.160.2_ In accordance with this rule, you are given 15

days from the date of this letter to respond to the com-

plaint.”’

Heavrin protested the fact that no complaint had

been sent to him and when this case was before the Trial

Committee. Mr. Damron, who was then representing

the Bar Association, told the Trial Committee that they

had received a letter from a reliable citizen, but they

admitted that Heavrin had not been sent a copy of the

letter. When this case reached the Supreme Court

level, the Bar Association said for the first time that

there were three sworn affidavits in addition to the

letter that formed the basis of the complaint, and the

KBA stated in its brief, ‘‘It has been the unwaivering

position of the complainants that Respondent has abso-

lutely no right whatsoever to see a copy of the actual

complaint . . .’’ (Appendix, pp. 51-54).

It is petitioner’s contention that the writ of certio-

rari should be granted because he has been denied due

process of law and equal protection of the law.

Disbarment proceedings are quasi-criminal in na-

ture. In Re: Ruffalo, 390 U.S. 544, 20 L. Ed. 2d 117,

2RCA means Rules of the Court of Appeals before the change

in the Kentucky judicial structure.

15

88 S. Ct. 1222. While states have the power to control

the practice of law, the power cannot be exercised so as

to abrogate federally imposed rights. Johnson v. Avery,

393 U.S. 483, 21 L. Ed. 2d 718, 89 S. Ct. 747. A state

may not act arbitrarily or otherwise violate a lawyer’s

constitutional right. Spevack v. Klein, 385 U.S. 511,

17 L. Ed. 2d 574, 87 S. Ct. 625.

A lawyer in a proceeding which will determine the

lawyer’s right to practice his profession is entitled to

due process of law and a state cannot exclude a person

from the practice of law or from any other occupation

in a manner or for reasons that contravene the due

process or equal protection clause of the Fourteenth

Amendment. Schware v. Board of Bar Examiners,

353 U.S. 232, 1 L. Ed. 2d 796, 77 St. Ct. 752. Konigs-

berg v. State Bar of California, 353 U. S. 252, 1 L. Ed.

2d 810, 77 8S. Ct. 722.

Procedural due process requires confrontation and

cross-examining of those whose word deprives a person

of his livelihood. Willner v. Committee on Character

and Fitness, 373 U. S. 96, 10 L. Ed. 2d 224, 83S. Ct.

1175. In Willner, it was held that the petitioner was

denied procedural due process when he was denied ad-

mission to the bar by the appellate division without a

hearing on the charges filed against him before either

the committee or the appellate division.

Other applicable language in Willner is:

‘But a ‘full hearing’—a fair and open hearing—

requires more than that . . . Those who are

brought into contest with . . . Government in a

quasi-judicial proceeding aimed at the control of

16

their activities are entitled to be fairly advised of

what the Government proposes and to be heard

upon its proposals before it issues its final com-

mand.”’

Willner also says that procedural due process often re-

quires confrontation and cross-examining of those

whose words deprive a person of its livelihood. Remem-

ber, the petitioner, Heavrin, was not heard in person

before the Board of Governors or by the S. Ct. of Ky.

The S. Ct. of Ky. has reserved into itself all fact finding

powers in a bar disciplinary case but it does seem rea-

sonable and fair and required by elementary consti-

tutional law that where a fact finding body disturbs the

facts found by another it should give some basis for

doing so. This did not occur in the ease here.

More disturbing is the fact that the Board of Gov-

ernors of the KBA and‘the 8. Ct. of Ky. refused to

deal with or decide this basic constitutional question,

although, it was clearly and forcefully made to the 8.

Ct. of Ky. by the petitioner, Heavrin. On page 47 of

the Appendix, a portion of the KBA’s brief before the

S. Ct. of Ky. is set forth. KBA acknowledged that

petitioner, Heavrin, raised two questions on procedural

defects before the Court yet the Court in its majority

opinion did not even discuss them. These questions

were timely raised before the Trial Committee, argued

and briefed before the Trial Committee, and there is

no contention that these questions were not timely as-

serted and vigorously advanced by the petitioner,

Heavrin.

17

Thus, right of due process here was violated because

(a) the petitioner, Heavrin, was not given a copy of the

actual complaint filed against him, and (b) the KBA’s

own rule required this to be done.

It may be argued the KBA’s letter described the

charges, but it is not sufficient because exculpatory ma-

terial may have been contained in the letter the re-

spondent, KBA, referred to in the hearing before the

Trial Committee (Appendix, p. 49), and the same is

true of the affidavits referred to in its brief before the

S. Ct. of Ky. (Appendix, p. 51). It occurs that if a

warrant based upon an affidavit issued to a defendant

in a criminal matter and the proceeding lated resulted

in an indictment before a grand jury the defendant

would be entitled to a copy of the affidavit which caused

the original issuance of the warrant leading to his arrest

and later indictment. Suppose the chief prosecuting

witness testified to something different at the trial than

was contained in the affidavit in support of the warrant.

Suppose a judge says to a defendant, ‘‘You have

been indicted for first degree murder,’’ and the defend-

ant demands to see the indictment and the request is

refused. It would hardly suffice if the judge replied

that the defendant had notice of the indictment and the

charges and all he really needed to know was the name

of the charge. We cannot imagine such a set of cir-

cumstances ever existing in a democratic society but

it is.exactly what occurred here.

One of the charges involved a very critical issue

of fact and related to whether or not the petitioner,

Heavrin, had made certain representations to an officer

18

of the Citizens Fidelity Bank. (See dissent of Chief

Justice Palmore, Appendix, p. 15).

The Trial Court in the civil case had found that pe-

titioner, Heavrin, had nothing to do with the forgeries

or any conspiracy and the Trial Committee of the KBA

acquitted Heavrin of these charges. The Bank officer

testified in the civil trial and her testimony was con-

sidered by the Trial Committee. Apparently, the Trial

Court nor the Trial Committee believed the bank officer

because if either had then it could not have vindicated

or acquitted the petitioner. Accordingly, if the bank

officer was one of the affiants or the person who wrote

the letter or signed the original complaint with the

respondent, K BA, then anything such person may have

said in the complaint, whether it was by letter or affi-

davits, would be vital on this precise issue. The failure

to do this particularly when it is required by the

respondent’s own rule clearly denies petitioner, Heav-

rin, due process of the law. This whole proceeding is

analogous to the situation where a lawyer is held before

his licensing authority and told that unsubstantiated

allegations about him have been brought to the atten-

tion of the authority and would he please explain all of

his activities and vindicate his conduct.

We think In Re: Ruffalo, 390 U.S. 544, 20 L. Ed. 2d

117, 88 8. Ct. 1222 is applicable and controlling in this

case and compels a conclusion that petitioner is entitled

to the relief he seeks. In fact, it probably requires a

summary reversal or vacating of the judgment of the

S. Ct. of Ky.

19

Ruffalo was generally accused of soliciting FELA

cases. After the proceedings had started, the charges

were amended to include a charge that Ruffalo’s in-

vestigator had investigated his own employer. The

investigator was employed by the railroad. This charge

was added after the proceeding commenced and Ruffalo

was found guilty of the charge and suspended from

practice in the Federal Courts of Ohio. The following

language in Ruffalo is relative and in our judgment

controlling:

‘*Disbarment, designed to protect the public, is a

punishment or penalty imposed on the lawyer. Ex

parte Garland, 4 Wall 333, 380, 18 L. Ed. 366, 369;

Spevack v. Klein, 385 U. 8. 511, 515, 17 L. Ed. 2d

574, 577, 87 S. Ct. 625. He is accordingly entitled

to procedural due process, which includes fair no-

tice of the charge. See In re Oliver, 333 U. 8. 257,

273, 92 L. Ed. 682, 68 S. Ct. 499. It was said in

Randall v. Brigham, 7 Wall 523, 540, 19 L. Ed. 285,

293, that when proceedings for disbarment are ‘not

taken for matters occurring in open court, in the

presence of the judges, notice should be given to

the attorney of the charges made and opportunity

afforded him for explanation and defense.’ ‘There-

fore, one of the conditions this Court considers in

determining whether disbarment by a State should

be followed by disbarment here is whether ‘the state

procedure from want of notice or opportunity to

be heard was wanting in due process.’ Selling v.

Radford, 243 U. 8. 46, 51, 61 L. Ed. 585, 587, 37

S. Ct. 377.

In the present case petitioner had no notice that

his employment of Orlando would be considered a

20

disbarment offense until after both he and Orlando

had testified at length on all the material facts per-

taining to this phase of the case. As Judge Ed-

wards, dissenting below, said, ‘Such procedural

violation of due process would never pass muster

in any normal civil or criminal litigation.’

These are adversary proceedings of a quasi-crim-

inal nature. Cf. In re Gault, 387 U. S. 1, 33, 18

L, Ed. 2d 527, 549, 87 S. Ct. 1428. The charge must

be known before the proceedings commence. They

become a trap when, after they are underway, the

charges are amended on the basis of testimony of

the accused. He can then be given no opportunity

to expunge the éarlier statements and start afresh.

How the charge would have been met had it been

originally included in those leveled against peti-

tioner by the Ohio Board of Commissioners on

Grievances and Discipline no one knows.

This absence of fair notice as to the reach of the

grievance procedure and the precise nature of the

charges deprived petitioner of procedural due

process.”’

Petitioner understands that Ruffalo relates to the

right of a disbarred lawyer to continue practicing in

the Federal Courts.

In Getty v. Reed, 547 F. 2d 971, CA 6 Ky. 1977, the

Sixth Circuit discussed disciplinary procedures for

Kentucky lawyers. Although the opinion primarily

relates to the question of when a Federal Court would

entertain an action by a lawyer who had been disbarred

by a State Court, it did use some very relevant and

pertinent language.

a a ee en

21

‘‘Tf, for example, the rules adopted by the Kentucky

Court of Appeals had been such as to permit filing

of secret complaints against lawyers and in camera

hearings and disbarment as a result of said com-

plaints without written statement of charges or

opportunity for a public hearing and confronta-

tion of witnesses and our current complainants had

been disbarred in such a proceeding with final

affirmation of that decision by the state’s highest

court, would there be doubt that under the Four-

teenth Amendment and the supremacy clause the

three-judge court would have ‘jurisdiction?’ We

think not.’’? (Kmphasis added)

II. There Must Be Some Objective Standard Before the

Mandate of Due Process-Equal Protection is Satisfied.

In answering the charges brought forth by the In-

quiry Tribunal, Heavrin stated, ‘‘He is denied equal

protection of the law because there are no objective

standards in determinig guilt or punishment.’’ Ap-

pendix, p. 64).

The majority of the court ignored this issue, but the

dissenting justices dealt with this issue, and stated, ‘‘If

the canons of ethics adopted for the legal profession

were tested under the ‘void for vagueness’ doctrine

which has spelled the doom of various breach of peace

and disorderly conduct laws throughout the country,

it is doubtful they would survive this case’’ (Appendix,

pp. 23-34).

No other profession in the State of Kentucky is

treated with such disdain. For example, in Osborne v.

Bullitt County Board of Education, Ky., 415 8. W. 2d

22

607, the Kentucky Appellate Court held the charges

against a teacher must be dismissed because they were

insufficient. In Armstrong v. Board of Civil Service

Commission, Ky., 48 8. W. 2d 1065, the Appellate Court

said that it would zealously guard the rights of public

employees to require charges for demotion or dis-

charge to be very definite and certain. In Hartman

v. Board of Education of Jefferson County, Ky., App.,

562 S. W. 2d 674, the present Court of Appeals con-

demned the notice of demotion because it lacked speci-

ficity.

In Konigsberg v. State Bar of California, 353 U.S.

252, this Court struck down the vague qualification of

‘*good moral character’’ as a prerequisite for admis-

sion to the bar. The petitioner submits the standard of

‘*holding the bench and bar is disrepute’’ is equally

vague and is, therefore, unconstitutional.

III. Before An Attorney’s License Can Be Suspended

He Must Be Guilty of Some Wrong Doing.

The Supreme Court in its majority opinion refers

intermittently to all seven charges, even though Heav-

rin was acquitted by the Board of Governors on the

first three. A careful reading of the opinion establishes

that Heavrin was convicted of: (1) making a misrepre-

sentation to Mrs. Collie at the bank, (2) commingling

funds, (3) not protecting payees, and (4) exchanging

checks.

(1) Misrepresentation to Mrs. Collie:

The Jefferson Circuit Court heard Heavrin and

Mrs. Collie testify at great lengths and believed Heav-

23

rin, otherwise, it would have been impossible for the

Circuit Court to have found in Heavrin’s favor (Ap-

pendix, pp. 38-39).

A Trial Committee held two hearings, questioned

Heavrin in detail and held, ‘‘There was no evidence of

any unethical conduct in the cashing of the check”’

(Appendix, p. 14).

The Board of Governors, at its monthly meeting,

then voted (in effect) that the Jefferson Circuit Court

and the Trial Committee who heard the witnesses were

incorrect in their assessment of the evidence, but neither

the Board of Governors or the Kentucky Supreme

Court explained how they reached this conclusion. In

any other type of litigation, the findings of fact and

conclusions of law by a fact finding body cannot be set

aside unless the findings are clearly erroneous. This

is Hornbook law. “

Why would the majority of the Court automatically

believe the bank is telling the truth and the lawyer is

not? Do lawyers always lie and bankers always tell the

truth? Moreover, this conclusion by the Board of Gov-

ernors and the Supreme Court of Kentucky is incon-

sistent with the evidence.

The Board of Governors stated in its opinion:

‘‘Once having entered into this course of conduct

the Respondent then devoted most of his energy

to the protection of his own financial interests and

not to the protection of the parties rightfully en-

titled to the funds (Appendix, p. 9).

If this be true, what interest was Heavrin protect-

ing? Presumably, he was trying to persuade the bank

24

to cash the check so Donoghoe would have the money

necessary to repurchase his jewelry. But if this was

his motive, it was certainly inconsistent with his actions.

When the bank was still holding $94,000.00 of the

money, Dan Ulmer, the Executive Vice-President,

called Heavrin and asked him about the endorsements.

Heavrin told Ulmer about Donoghoe renting a plane

to fly to Whitesburg to obtain the signatures of the

other payees, and about seeing him off to Florida to

obtain the endorsements of the Florida lawyer who was

co-counsel on the case (Appendix, p. 16). Heavrin

also called Donoghoe (Appendix, p. 68) and demanded

an explanation, and called the bank back and gave the

bank the names, addresses and phone numbers of all

payees he knew about (Appendix, pp. 38-39).

Thus, the Board of Governors, and the Supreme

Court of Kentucky have ignored the evidence and have

set aside without reason or comment the conclusions of

two competent fact finding bodies.

(2) Commingling Funds:

The majority’s opinion on this issue disregards the

fact that an attorney can commingle funds if his client *

gives him permission to do so. In the instant case,

Donoghoe, who was Heavrin’s client, was present at all

times when the alleged commingling occurred, author-

ized every step that was taken, kept records of the

transactions, was completely satisfied with Heavrin’s

representations, and never filed any complaints about

the matter with the Bar Association.

In contrast to the instant case, and to further il-

lustrate the lack of any objective standard, the peti-

25

tioner cites Ky. Bar Association v. Burroughs, decided

February 6, 1979, 26 KLS 2 (Appendix, p. 58), wherein

Burroughs deposited his client’s money in his attorney’s

account, and then lent the money without his clients

knowledge to a third party to buy a truck. For this

act and others Burroughs received a public reprimand.

In this case, Mr. Chief Justice Palmore’s dissent

dissects this issue with such force petitioner believes

no further argument is needed.

(3) Failure to Protect Payees:

This allegation can best be characterized as unique.

Donoghoe brought Heavrin a fully endorsed, certified

check and asked him to cash the check. Presumably

the Bar is complaining because Heavrin did not take

the pro rata share that was due to each of the payees

named in the check and delivered the money to them

personally. This check was fully negotiable under the

Uniform Commercial Code, and cashing it could not

under any circumstances be violative of any code of _

ethics.

Following the Board of Governors thinking to its

illogical conclusion, no two-party check could ever be

cashed unless all parties were present to receive their

pro rata share of the money. Otherwise, no person at

the bank would risk cashing such a check because they

would be held responsible if one payee absconded with

all the money. Heavrin made every effort to see that

everything was in order (Appendix, pp. 38-39).

(4) Exchange of Checks:

This transaction was totally harmless, no one was

defrauded, no one lost a thing and neither the Board of

26

Governors nor the Supreme Court of the State is able

to explain how this transaction violated any code of

ethics, The dissenting opinion refers to the problems

Alice had with the ruthless Queen of Hearts and ac-

curately stated, ‘‘. . . the Board evidently convicted

Heavrin first and then decided what it convicted him

for. This may comport with due process but it makes

me think that perhaps Heavrin had been right all along

in insisting that from the beginning the charges were

never sufficient’? (Appendix, p. 21)

The petitioner believes the analogy to the Queen is

correct and submits it is impossible to defend any type

of case either factually or legally when the Queen is

shouting, ‘‘First the verdict then the evidence.”’

In Thompson v. City of Louisville, 362 U. S. 199,

4 L. Ed. 2d 654, 80 S. Ct. 624, a unanimous court ac-

curately noted, ‘‘Just as ‘conviction upon a charge not

made’ would be sheer denial of due process, so is it a

violation of due process to convict and punish a man

without evidence of his guilt.’’

In the present case, Heavrin plain and simple did

nothing wrong, violated no canon of legal ethics, and is ©

being arbitrarily punished. We would respectfully

submit the mandate of Thompson is applicable to the

case at bar.

27

CONCLUSION

If you read only the majority opinion, it would be

impossible to determine what happened in this case, yet

the Board of Governors’ opinion is permeated with

ominous sounding accusations and menacing descrip-

tions. Every action and statement made by Heavrin

has been construed as evidence of his guilt.

For example, the Board of Governors talks of Heav-

rin of being suspicious of Donoghoe and then proceed-

ing without caution. In reality, Heavrin testified,

‘‘Well, I said in the deposition that, any time I have

ever represented anyone in a criminal case, you always

have some suspicions, and I have been suspicious of

people that told me the absolute truth and I felt very

confident about people who were lying tome. I had no

more suspicion about him than I would someone who

walked in this afternoon and told me their version of a

criminal case . . .’’ (Appendix, p. 68).

We wonder how the Board of Governors would have

construed the case if Heavrin said he was never suspi-

cious of any of his clients and always accepted their

word without doubt.

Thus, we have an attorney convicted of violating the

canons of ethics when:

(1) The Bar Association commenced a disciplinary

action against one of its member, and has had the au-

dacity to argue that it does not have to show a. copy of

the complaint to the accused.

(2) The Board of Governors and the Supreme

Court of the State have ignored the findings of two fact

28

finding bodies who exonerated the petitioner, without

stating any reason for doing so.

(3) The Board of Governors and the Supreme

Court have ignored all argwnents relating to due proc-

ess and equal protection, anc! have made no findings on

either of these issues despite the fact they were ex-

haustively briefed. A motion for oral argument was

made but it was denied.

(4) The conduct of the petitioner in this case was

not unethical and neither the Board of Governors nor

the Supreme Court have been able to cite any authority

to support its conclusions.

In the history of Kentucky jurisprudence there has

never been a dissenting opinion on the issue of guilt

in a disciplinary case, and we sincerely hope this Court

examines both the majority opinion and the dissenting

opinion.

The April 10, 1978, edition of Time quoted the late

Mr. Justice Tom Clark as saying disciplinary proceed-

ings are ‘‘scandalous’’ because only small-time lawyers,

without connections, are ever disciplined.

The case before this Court deals with an attorney’

who has diligently represented his clients for twelve

years without regard to the popularity of the cause (e.g.

Pankey v. Commonwealth, Ky., 485 8. W. 2d 513 and

Laing v. United States, 423 U. 8S. 161, 46 L. Ed. 2d 416,

96 S. Ct. 473).

If Heavrin had researched the law every step of the

way, he could not have found a single case from any

jurisdiction coudemning his conduct. Therefore, for

the reasonc stated herein, this Court should summarily

° 29

overturn the ruling of the Kentucky Supreme Court or

alternatively grant certiorari so this case can be fully

argued on the merits.

Respectfully submitted,

HENRY ARMSTRONG TRIPLETT

231 S. Fifth St., Third Floor

Louisville, Kentucky 40202

Attorney for Petitioner

30

CERTIFICATE OF SERVICE

I hereby certify that on this <9 day of March, 1979,

three copies of this Petition for Writ of Certiorari and

accompanying separate Appendix were mailed, postage pre-

paid to Hon. Leslie Whitmer, Director, and Mr. Michael

Hooper, Kentucky Bar Association, 403 Wapping Street,

Frankfort, Kentucky.

| ie (93S

OW!

Henry A. TRrRIPLetTtT

Hogan, Taytor, Denzer & BENNETT

231 S. Fifth Street, Third Floor

Louisville, Kentucky 40202

Counsel for Petitioner