Petition — Robinson v. Grievance Committee of the Seventh Judicial District

FILED

MAY 19 1980

MICHAEL-RODAK, JR, CLERN |

ell

IN THE

Supreme Court of the United States

October Term, 1979

Ne 79_183%

DONALD E. ROBINSON, JrR.,

Petitioner,

against

GRIEVANCE COMMITTEE OF THE SEVENTH JUDICIAL DISTRICT,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF NEW YORK,

APPELLATE DIVISION, FOURTH DEPARTMENT

DEWEY, BALLANTINE, BUSHBY,

PALMER & Woop

Attorneys for Petitioner

140 Broadway

New York, New York 10005

(212) 344-8000

J. PAUL MCGRATH

MICHAEL D. DiGIACOMO

Of Counsel

TABLE OF CONTENTS

CORR OE CNG CE TI wicisitcvdiesicsinsccesnnnsccanecceninniccnnns

Jurisdiction of the Supreme Court .0.........cccccceeeeeeeeeeeeeee

Questions Presented for Review .............ccccccessseeseeceeeeeeee

Constitutional Provisions and Statutes Involved .............

TRBRGMNGIN OE WE COUN oes sinvecenictscvesincriienensnstentenssansndannaune

How Federal Questions Are Presented .....................

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

Point I—The decision below is not in accord with

decisions of this Court which bar prosecution for

conduct resulting solely from extreme police

misconduct and entrapment ...............::cccceceeeeeeee

Point II—The decision below is inconsistent with

decisions of this Court in that disciplinary pro-

ceedings were brought against Robinson for the

same conduct for which he was acquitted at the

INE CII ID siseiccd haiteceetannens

Point III—Robinson’s due process and equal

protection rights were violated by the New York

statute which grants an extremely limited review

to attorneys disbarred by the Appellate Division .

CEI socio sdinsisectedivaconlcnniaacneuce aaa:

Appendix A—Opinion of the Appellate Division ...........

Appendix B—Report of Hearing Officer ..............00..0000

Appendix C—Orders of the New York Court of Ap-

SUID stcaccsssstncsicnnssanveilaenicsceciieidetsddadeiaanalalaamaaannana ea eae:

Appendix D—Constitutional Provisions and Statutes

BIIVINS ociinccniissnrcicsvenenvarssncnnsciecaielstnmngnneas ane nealn

12

il

TABLE OF AUTHORITIES

Page

Cases:

Gerzof v. Gulotta, 57 App. Div. 2d 821, 395 N.Y.S. 2d

26 (1st Dep’t), appeal dismissed, 42 N.Y. 2d 960, 398

cies csvcncsnevensessesnipesssvsovensete 14

Griffin v. Illinois, 351 U.S. 12 (1956) ........ccscccessrsesseeeeees 13

Hampton v. United States, 425 U.S. 484 (1976)..........00 9, 12

Helvering v. Mitchell, 303 U.S. 391 (1938) .......:cccceseeeseees 12

Lindsey v. Normet, 405 U.S. 56 (1972 ).......csccsssssesssseseseees 13

Mildner v. Gulotta, 405 F. Supp. 182 (E.D.N.Y. 1975),

IE ED Se ccscesscctcsesesenesonsssccescssseceeces 9, 13,

14

People ex rel. Dowdy v. Smith, 65 App. Div. 2d 285, 411

N.Y.S. 2d 472 (4th Dep’t 1978), rev'd, 48 N.Y. 2d

Gy) 12-13

People v. Isaacson, 44 N.Y. 2d 511, 406 N.Y.S. 2d 714

a irinisdassnicecsessensescescoccssssoessocosees 10

Person v. Association of the Bar of the City of New York,

554 F. 2d 534 (2d Cir.), cert. denied, 434 U.S. 924

Se clic. dnsataneseveserisesnrsccsctscsssceses 9

In re Ruffalo, 390 U.S. 544 (1968)......cccccceeseeeeseeeeeeeeees 9

In re Schneidkraut, 231 App. Div. 109, 246 N.Y.S. 505

asa cccnesnchinntenscovecccoscosceos 13

Sherman v. United States, 356 U.S. 369 (1958) .............. 9-10

Sorrells v. United States, 287 U.S. 435 (1932) «0.0.00... 10

United States v. Borum, 584 F. 2d 424 (D.C. Cir. 1978). 11

United States v. Gil, 604 F. 2d 546 ( 7th Cir. 1979) ......... 12

United States v. Russell, 411 U.S. 423 (1973) .............0 9

United States v. Twigg, 588 F. 2d 373 (3d Cir. 1978) ..... 10

United States v. West, 511 F.2d 1083 (3d Cir. 1975)... 10

Wager v. Pro, 603 F. 2d 1005 (D.C. Cir. 1979)... 10

United States Constitution:

PPOUTODOME ARRERGMENT ............000000ccccccesccsssccscessseees passim

New York Constitution:

ic ncnansdnanaswesacesnssecesevssane 13

Statutes:

New York Judiciary Law Section 90.................:..:06+ 13

New York Civil Practice Law and Rules Section

EEL oc. sistent necneonsonnooes 13

IN THE

Supreme Court of the United States

October Term, 1979

No.

DONALD E. ROBINSON, JR.,

Petitioner,

against

GRIEVANCE COMMITTEE OF THE SEVENTH JUDICIAL DISTRICT,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE SUPREME COURT OF THE STATE OF NEW YORK,

APPELLATE DIVISION, FOURTH DEPARTMENT

The petitioner Donald E. Robinson, Jr. prays that a writ of

certiorari be issued to review the judgment of disbarment

entered against him by the Supreme Court of the State of New

York, Appellate Division, Fourth Department.

Opinion of the Court Below

The opinion of the Supreme Court of the State of New

York, Appellate Division, Fourth Department sought to be

reviewed is reproduced in Appendix A, and is reported at 70

App. Div. 2d 209 and 420 N.Y.S.2d 430 (Sept. 28, 1979); the

report of the hearing officer appointed to make factual findings

by the Appellate Division, which adopted his report, is repro-

2

duced in Appendix B. The Court of Appeals of the State of

New York denied Robinson’s motion for leave to appeal from

the Appellate Division in an order entered November 27, 1979,

and granted a motion made by the respondent Grievance

Committee of the Seventh Judicial District to dismiss the appeal

taken by Robinson as of right in an order entered on February

20, 1980. Copies of these orders are reproduced in Appendix C.

Jurisdiction of the Supreme Court

Title 28, United States Code, section 1257(3) confers

jurisdiction on this Court to review the judgment by a writ of

certiorari. This petition for certiorari was filed within ninety

days of the order of the New York Court of Appeals entered on

February 20, 1980, which dismissed Robinson’s appeal from

the order of disbarment entered by the Appellate Division on

September 28, 1979.

Questions Presented for Review

1. Whether it is a violation of Robinson’s due process

rights and fundamental fairness to impose the ultimate sanction

of disbarment on him for actions demonstrably procured only

by extreme police misconduct and entrapment.

2. Whether it is a violation of Robinson’s due process

rights and fundamental fairness to bring disciplinary proceed-

ings against him for the same conduct for which he was

acquitted at a prior criminal trial, after asserting an entrapment

defense.

3. Whether it is a violation of Robinson’s due process and

equal protection rights for the law of New York to grant only

an extremely limited review to attorneys who are disbarred by

order of the Appellate Division, which sits as a court of first

impression in disciplinary proceedings.

3

Constitutional Provisions and Statutes Involved

CONSTITUTIONS:

U.S. Constitution, Fourteenth Amendment

New York Constitution, Article 6, Section 3

STATUTE:

New York Judiciary Law § 90 (29 McKinney 1968 at

117-122 and Supp. 1979-1980 at 78-80).

Each of the above is set forth in Appendix D.

Statement of the Case

The Appellate Division of the State of New York ordered

Robinson disbarred for acts which were incited and caused by

the District of Columbia police and the F.B.I. and for which he

had been acquitted at a prior criminal trial, obviously on a

finding that he had been entrapped by the police authorities.

Indeed, entrapment and police misconduct are the only logical

explanations for what happened.

Robinson’s background is impeccable. After college and

two years in the Peace Corps, he went to Fordham Law School,

where he was an editor of the Law Review, received awards for

excellence, and was elected President of his class all three years.

After law school he was an associate at Dewey, Ballantine for

two years, and then joined the U.S. Attorney’s office in

Washington, D.C. as an Assistant U.S. Attorney. He put in 24

years of exemplary service there, and in January 1976 he

accepted a position in his home town of Rochester, New York

with the Monroe County District Attorney as a Chief Assistant.

(Report of hearing officer appointed by Appellate Division,

App. B at 4, 31-32.) However, before he could actually take on

that new job, the roof fell in on him.

In the fall of 1975, Robinson—a devoted family man with

three young daughters—committed an indiscretion which may

end his legal career. He had a brief sexual affair with a

4

prostitute named Loretta Butler, who had been a government

witness in a case he had tried. The F.B.I. and the District of

Columbia police learned of this incident, took advantage of his

embarrassment over it and put added pressure on him by

making overt threats. Through a cruel chain of events, this led

Robinson to accept $700 from police officers he believed to be

life-threatening mobsters and to give them certain information.

In iate 1975, the Washington Police Department and the

F.B.I. were running an undercover fencing operation they

called P.F.F., Inc., trying to obtain leads on criminal activities.

Shortly after her sexual encounter with Robinson, Loretta

Butler started selling P.F.F. stolen checks. (App. B at 5.) In

the course of this she told the police about her affair with

Robinson, and they recruited her to arrange a meeting with

him, apparently because of her unsubstantiated claims (which

she later denied ) that he had been responsible for the acquittal

in the felony trial in which she had testified. They gave her a

“down payment” for her assistance—in effect, a bounty for

luring Robinson into their web. (App. B at 6.)

Butler tried to contact Robinson several times, but she kept

missing him and he did not return her calls. Finally, on

December 30, 1975, when she finally managed to reach him at

his office, she turned the phone over to an undercover detective

who was posing as an organized crime figure. The detective

offered Robinson $10,000 for his assistance in pending cases

and tried to set up a meeting. Robinson refused the invitation

and, the very next day, gave his superiors a full report of the

bribery attempt, failing only to mention Loretta Butler’s role,

because he was too embarrassed. (App. B at 6.)

The next day, Robinson received a second call from the

supposed gangster, and again he promptly reported the call to

his superiors. Once again, however, he failed to mention

Loretta Butler’s role. By this time, however, his superiors had

been fully apprised by the undercover agents of their attempts

to ensnare Robinson, and they knew full well that Robinson

had not told them about Loretta Butler because he was

5

embarrassed about his past sexual involvement with her. (App.

B at 7.)

Robinson was bothered by more than his embarrassment.

He was becoming increasingly scared in his belief that he was

being solicited by mobsters. Accordingly, he asked his superi-

ors to put a pen register on his office telephone to trace

incoming phone calls. But his superiors made no effort to trace

the calls, because they knew full well where they were coming

from. (App. B at 7.)

In early January 1976, Robinson was offered and accepted

a position with the Monroe County District Attorney’s Office.

Since this looked like a golden opportunity to elude the

“mobster” who was pressing to meet him, Robinson had his

new employer ask the U.S. Attorney in Washington to waive

the usual sixty-day notice requirement for departing Assistant

U.S. Attorneys; but the U.S. Attorney "efused to let Robinson

go early, in part because Robinson’s involvement with the

undercover operation was still unresolved. This thwarted

Robinson’s efforts to move to a city where he could escape the

government agents’ importunities. (App. B at 8-9.)

During early January P.F.F. had Loretta Butler make

repeated calls to Robinson, but he did not return them. After

two weeks of this, however, Robinson’s wife received a threat-

ening telephone call at their home, in which the caller stated

that “Robbie won’t be around.” Robinson quite under-

standably believed this call came from the “Mafia” figures who

had been after him, although there is no evidence that this call

actually originated with the undercover agents. (App. B. at 9.)

This call so shook him up that two days later, when Loretta

Butler called again, at her request he called P.F.F. and talked

to one of the undercover detectives. Still trying to escape their

trap, Robinson warned them that he was being accompanied

everywhere by a bodyguard. This lie was but another desper-

ate attempt by Robinson to elude those threatening him until he

was able to leave Washington. (App. B at 9.)

6

A few days later Mrs. Robinson received a second threat-

ening phone call from the person who had called earlier. That

was the last straw. Fearing for his own safety and that of his

family, Robinson called Loretta Butler and arranged to meet

her to find out more about her accomplices. At this meeting the

pressure on Robinson was increased still further. The day

before the meeting, in Butler’s presence and certain that she

would pass it on to their victim, an undercover agent had said

that Robinson “would be disappearing” if he failed to show up

at a meeting with them. Sure enough, Butler dutifully relayed

this threat to Robinson. (App. B at 10-11, 33.)

Two days later when one of the undercover agents called

Robinson and told him to come to P.F.F.’s store-front oper-

ation, after all the pressures and threats it is little wonder that

he did what they said. At the P.F.F. office he was asked

whether he could assist the operation with pending cases, and

he made vague statements about his ability to do so. During

the discussion, one of the agents placed $200 on the counter in

front of Robinson, and Robinson took it, although there was no

understanding on a quid pro quo. Later that day, at the request

of the undercover agents, he checked on a case against a

woman the agents had asked about. He reported back that

there was no pending case against her, information which was

available from public sources. (App. B at 11-12.)

The next day one of the undercover agents asked Robinson

about another case. This case had actually been selected by the

U.S. Attorney himself; he felt that if Robinson were to disclose

information about it, the government could make a better case

against him at trial. (App. B at 12.) Robinson stalled for

nearly two weeks, but after further prodding by the undercover

agents he finally met with them again and gave them informa-

tion about the case, part of which was public, part confidential,

and much of which was fabricated. (App. B at 13.) During

this meeting, the undercover agent offered Robinson $100, bur

Robinson asked for and was given $500. (App. B at 13-14.)

Robinson was subsequently arrested. At police headquar-

ters, he waived his right to remain silent and to be assisted by

7

counsel, and he gave the F.B.I. a detailed and accurate

description of all the events leading up to his arrest, even

though he was not then aware that this information was already

known to the police. (App. B at 14, 32.) Robinson even

admitted knowing Butler, but he denied any sexual relationship

with her. He was later tried on criminal charges arising from

this conduct and was acquitted on all counts, after asserting the

defense of entrapment. United States v. Robinson, Crim. No.

76-296 (D.D.C.). (App. B at 14.)

In the hearing officer’s opinion below, he took note of

Robinson’s “impressive personal and professional history, but

for the conduct under review herein.” (App. B at 31.) Even

more important, he found that Robinson was not predisposed

to commit the acts in question, although he rejected the claim

that Robinson’s conduct was due to improper governmental

activities or entrapment. (App. B at 28-29.) Further, the

hearing officer was critical of the police misconduct which

ensnared Robinson:

“Although [Robinson’s] claimed lack of culpability

due to entrapment cannot be sustained,...the level of police

instigation present here cannot be ignored.

“On hindsight, it can be seen that [Robinson] was

reluctant, at least initially, to involve himself with people

he genuinely believed were members of organized crime.

The undercover agents can fairly be characterized as

persistent in their efforts to obtain [Robinson’s] participa-

tion in their phony venture. The enlistment of Loretta

Butler with the promise of payment in the event of a

successful arrangement between [Robinson] and P.F.F.

must be viewed as a calculated effort to ensure importu-

ning of [Robinson]. Their casual threats made in Loretta

Builer’s presence regarding the consequences of [ Robin-

son’s] failure to cooperate were certain to be commu-

nicated to [ Robinson] and cannot be condoned as respon-

sible police work.” (App. B at 32-33.)

8

How Federal Questions Are Presented

Robinson seeks to raise three federal questions in this

petition, ali of which were timely raised below.

1. Police misconduct and entrapment as a violation of

constitutional rights: Both the referee to hear and report (App.

B at 28-29) and the Appellate Division (App. A at A-3 & n.2)

considered and rejected Robinson’s claim that the police mis-

conduct and entrapment violated his due process rights. In

addition, Robinson fully briefed this point to the New York

Court of Appeals ([Petitioner’s] Memorandum In Opposition

to Motion to Vacate Notice of Appeal, at 11-16), which granted

a motion to dismiss his appeal without opinion.

2. “Res judicata” and double jeopardy effects of the

criminal acquittal: Again, both the referee (App. B at 29) and

the Appellate Division (App. A at A-2 n.1) expressly rejected

Robinson’s contention that his acquittal at his criminal trial

after asserting an entrapment defense was a constitutional bar

to later disciplinary proceedings based on the same conduct.

The point was also briefed to the New York Court of Appeals

(Memorandum, supra, at 17-18).

3. Limited right to appeal under New York law: Petitioner

raised this point for the first time in his brief to the New York

Court of Appeals (Memorandum, supra, at 18-20). Of course,

the lack of right to appeal would logically not be raised until

appeal was necessary and attempted.

9

Reasons for Granting the Writ

POINT I

The decision below is not in accord with decisions of

this Court which bar prosecution for conduct result-

ing solely from extreme police misconduct and

entrapment.

The referee appointed by the Appellate Division, after

conducting six days of hearings and examining the transcript of

Robinson’s criminal trial, found that Robinson was not pre-

disposed to commit the wrongdoing for which he is now

charged (App. B at 28), that “the level of police instigation

present here cannot be ignored,” and that the police’s activity

“cannot be condoned as responsible police work.” (App. B at

32, 33.) On this record a contrary conclusion could not be

reached.

It is clear that the police misconduct here, which goes to

the heart of these proceedings, violated Robinson’s due process

rights, and accordingly is a complete defense as a matter of law

in these proceedings as well as at a criminal trial.1

A majority of the Justices of this Court have indicated that,

even where a defendant is found predisposed to commit the

crime,? his conviction may be barred by due process if there has

been overreaching police misconduct. Hampton v. United

States, 425 U.S. 484, 491 (Powell and Blackmun, JJ., con-

curring in the judgment), 495 (Brennan, Stewart, and Mars-

hall, JJ., dissenting) (1976). Accord, e.g., United States vy.

Russell, 411 U.S. 423, 431-32 (1973); Sherman v. United

' Because disciplinary proceedings are of a quasi-criminal nature,

e.g., In re Ruffalo, 390 U.S. 544, 551 (1968); Person v. Association of

the Bar of the City of New York, 554 F.2d 534, 536-37 (2d Cir. ), cert.

denied, 434 U.S. 924 (1977); Mildner v. Gulotta, 405 F. Supp. 182,

191 (E.D.N.Y. 1975), aff'd, 425 U.S. 901 (1976), it is appropriate to

consider criminal-law defenses in such proceedings, especially where,

as here, the police misvonduct and entrapment are of constitutional

dimension.

2 Unlike petitioner here. App. B at 28.

10

States, 356 U.S. 369,.378-85 (1958) (Frankfurter, Douglas,

Harlan, and Brennan, JJ., concurring in the result); Sorrells v.

United States, 287 U.S. 435, 453-59 (1932) (separate opinion

of Roberts, J., concurred in by Brandeis and Stone, JJ.); Wager

v. Pro, 603 F.2d 1005, 1009 (D.C. Cir. 1979) (“Entrapment,

normally recognized as a defense in criminal cases, can be so

outrageous as to be illegal because it deprives the defendant of

due process of law”’).$

If there were ever a case where police misconduct and

entrapment violated fundamental fairness, this is it. It is clear

from the record that:

—But for the police’s actions in ensnaring Robinson,

no offense would have been committed. There was clearly

no ongoing criminal activity on Robinson’s part before the

pressure from the undercover agents. Moreover, as found

below, he did not have a predisposition to commit the

offenses. His prior record was—and his subsequent record

is—exemplary.

—The police themselves clearly engaged in conduct

repugnant to a sense of justice. Among other things, they

bribed Loret*2 Butler into luring Robinson into their web;

they effectively blackmailed him into cooperating by using

his clandestine sexual relations with Butler which he

wished to conceal; and, worst of all, they actually threat-

ened to kill him if he refused to cooperate, something the

referee below with remarkable understatement said “can-

not be condoned as responsible police work.” (App. B at

33.)

3 The same result obtains under the due process clause of the

New York State Constitution. E.g., People v. Isaacson, 44 N.Y.2d

$11, 406 N.Y.S.2d 714 (1978). Similarly, a number of federal

appellate courts have dismissed prosecutions because of overreaching

involvement by law enforcement officials which violates due process

and fundamental fairness. E.g., United States v. Twigg, 588 F.2d 373,

381 (3d Cir. 1978); United States v. West, 511 F.2d 1083, 1085 (3d

Cir. 1975).

11

—There is no doubt that the police broke down

Robinson by persistent solicitations in the face of

unwillingness. Robinson refused the early bribery

attempts (including one for $10,000) and reported them to

his superiors. For weeks he tried to ward off the under-

cover agents by not returning their telephone calls and by

stalling. In a further effort to discourage them, he made up

the story that he was under the protection of a bodyguard.

Indeed, it was only after his wife had received threatening

telephone calls which he linked to the agents and after the

actual threat of violence transmitted through Loretta But-

ler that he did cooperate. As was their plan, the agents

successfully played on his fear that the covert relationship

with Loretta Butler would be exposed as well as on threats

of bodily harm.4

—There is no evidence that the police actions were

reasonably motivated by a desire to prevent further crime

or protect the populace. Robinson was hardly a known

criminal and in fact lacked the predisposition to commit

even the offenses for which he is now charged. There was

no danger that he would commit any crimes or do any

public harm.

In short, Robinson’s due process rights were violated by

the gross misconduct of law enforcement officials, and accord-

ingly he should not be disciplined for the resulting acts.

4 It is significant that at least one other court has found evedence

that the very undercover operations which ensnared Robinson may

also have induced other unwilling victims into committing crimes. See

United States v. Borum, 584 F.2d 424, 427-29 (D.C. Cir. 1978).

12

POINT II

The decision below is inconsistent with decisions of

this Court in that disciplinary proceedings were

brought against Robinson for the same conduct for

which he was acquitted at the prior criminal trial.

It is a violation of the double jeopardy clause to be

subjected twice to criminal proceedings for the same offense.

E.g., Helvering v. Mitchell, 303 U.S. 391, 399 (1938). Before

the disbarment proceeding Robinson had already been tried

and acquitted of criminal charges resulting from the conduct in

question. Because disciplinary proceedings are of a quasi-

criminal nature, fn. 1 p. 9 supra, it is a violation of double

jeopardy to disbar him for the same conduct.

In fact, this Court’s opinion in Hampton v. United States,

supra, 425 U.S. 484, has recently been interpreted to mean that

a successful entrapment defense negates the very existence of a

crime, because criminal statutes have no application to an act

committed at the government’s instigation. United States v. Gil,

604 F.2d 546, 548 (7th Cir. 1979). For this reason too, further

quasi-criminal proceedings after the successful assertion of an

entrapment defense must be barred.

Moreover, it also violates the constitutional guararantee of

fundamental fairness to bring disciplinary proceedings against

Robinson after his acquittal, since the latter should be res

judicata and a bar to the former. The Appellate Division

below, in rejecting Robinson’s res judicata claim, relied on the

Appellate Division opinion in People ex rel. Dowdy v. Smith, 65

App. Div. 2d 285, 411 N.Y.S.2d 472 (4th Dep’t 1978), which

later was reversed by the New York Court of Appeals, 48

N.Y.2d 477, 423 N.Y.S.2d 862 (1979); in Dowdy the Court of

Appeals held that a prior acquittal based on an entrapment

defense in a criminal proceeding collaterally estops a parole

board from revoking parole on the basis of the actions proved

13

and admitted in the criminal case. The same reasoning should

operate here to bar Robinson’s disciplinary proceedings.®

POINT Ill

Robinson’s due process and equal protection rights

were violated by the New York statute which grants

an extremely limited review to attorneys disbarred by

the Appellate Division.

Under the applicable New York law, Robinson, like other

attorneys disbarred by order of the Appellate Division (which

sits as the court of first instance in disciplinary proceedings),

may appeal his disbarment as of right to the New York Court

of Appeals only if the appeal raises constitutional issues. N.Y.

Judiciary Law § 90(8) (McKinney 1968), incorporating by

reference N.Y. Constitution, Art. 6, § 3(b)(1).® Accord, N.Y.

Civil Practice Law and Rules § 5601(b)(1); see Mildner v.

Gulotta, supra, 405 F. Supp. at 190.

Such a limited right to appeal, which is narrower than that

afforded under New York law to other litigants and other

professionals in disciplinary proceedings, violates Robinson’s

constitutional rights of due process and equal protection. £.g.,

Lindsey v. Normet, 405 U.S. 56, 77 (1972); Griffin v. Illinois,

351 U.S. 12, 18 (1956); Mildner v. Gulotta, supra, 405 F. Supp.

at 223-28, 232-33 (dissenting opinion) (e.g., comparing limited

review afforded attorneys under New York law with that

afforded other professionals ).

5 The Appellate Division below also cited on the res judicata

point In re Schneidkraut, 231 App. Div. 109, 246 N.Y.S. 505 (2d

Dep’t 1930). But in that case the court merely noted that the

attorney’s criminal acquittal “did not put an end to this [disciplinary]

proceeding. It is not essential in a disciplinary proceeding against a

member of the bar that his unfitness to remain such shall imply

criminality.” Jd. at 110, 246 N.Y.S. at 506. Here the allegedly

criminal acts for which Robinson was acquitted are the only basis for

the disbarment decision.

6 Both set forth in Appendix D.

14

Although the respondent Grievance Committee has

claimed that this issue has been decided adversely to petitioner

by the courts, no dispositive ruling has yet been issued. For

example, in Mildner v. Gulotta, supra, 405 F. Supp. 182, a

three-judge federal court abstained from deciding the issue for

reasons of comity,” and therefore its views on the merits of the

constitutional claims were only dictum. This Court affirmed,

425 U.S. 901 (1976). Some authorities have indicated® that

this Court’s affirmance in Mildner meant that this Court reached

the merits of that suit, notwithstanding the district court’s

abstention, or else it would not have taken jurisdiction of the

appeal. This appears to be error, since this Court’s order of

affirmance in Mildner notes that two of the Justices (Marshall

and ?owell) would have postponed consideration of the

jurisdictional question to a hearing on the merits. This implies

that the affirmance was actually a dismissal of the claims below

on abstention grounds, and not on the merits.

7 Instead, the court held that the attorneys’ remedy would be to

apply to this Court for review of the state court disciplinary proceed-

ings, as Robinson is now doing. In Mildner the attorneys had not

even exhausted the state court appellate process prior to bringing their

suit in federal court.

8 E.g., Gerzof v. Gulotta, 57 App. Div. 2d 821, 822, 395 N.Y.S.2d

26, 28 (lst Dep’t), appeal dismissed, 42 N.Y.2d 960, 398 N.Y.S.2d

146 (1977).

15

Conclusion

For the reasons stated herein, this petition for a writ of

certiorari should be granted.

May 16, 1980

Respectfully submitted,

DEWEY, BALLANTINE, BUSHBY,

PALMER & Woop

Attorneys for Petitioner

140 Broadway

New York, New York 10005

(212) 344-8000

Of Counsel:

J. PAUL MCGRATH

MICHAEL D. DiGIACOMO

APPENDIX A

A-1

MTR. OF ROBINSON [70 AD2d 209] 209

In the Matter of Donatp E. Rosinson, Jr., an Attorney,

Respondent. GRIEVANCE COMMITTEE OF THE SEVENTH JUDI-

CIAL DistTRICT, Petitioner.

Fourth Department, September 28, 1979

SUMMARY

DISCIPLINARY PROCEEDINGS instituted by the Grievance Com-

mittee of the Seventh Judicial District. Respondent was admit-

ted to the Bar on February 16, 1972, at a term of the

Appellate Division of the Supreme Court in the Fourth Judi-

cial Department.

HEADNOTE

Attorney and Client — Disciplinary Proceedings

An attorney, who, while an Assistant United States Attorney, agreed in

return for the promise of money to supply confidential information and to

give assistance with respect to criminal cases pending in the United States

Attorney's office to persons he believed to be members of organized crime,

actually members of the police and the F.B.I., and who made incomplete and

inaccurate reports concerning his initial contacts with said persons, is guilty

of a breach of the lawyer's duty of undivided loyalty to his client, a breach

of the trust placed in him as a public official and violations of his oath of

office and he is disbarred; there was no entrapment, and he was not an

“unwary innocent” corrupted and motivated by the deceitful actions of

government officials.

APPEARANCES OF COUNSEL

David E. Brennan (Gerard M. La Russo of counsel), for

petitioner.

David Povich and Donald E. Robinson, Jr., pro se, for

respondent.

OPINION OF THE COURT

Per Curiam.

Respondent was admitted by order of the Appellate Divi-

sion, Fourth Department on February 16, 1972. He maintains

an office for the practice of law in Rochester.

The misconduct of respondent alleged in the petition and

established at the hearing is detailed in the chronological

account in the report of the hearing officer, Honorable DANIEL

J. DE Pasquate, J.C.C. These factual findings are fully sup-

ported by the record and respondent concedes their accuracy.

Accordingly we adopt them. The misconduct may be briefly

summarized as follows:

A-2

210 70 APPELLATE DIVISION REPORTS, 2d SERIES

In December, 1975 and January and February, 1976 respon-

dent, then an Assistant United States Attorney charged with

the responsibility of prosecuting felonies in the District of

Columbia, agreed, in return for the promise of money, to

supply confidential information and to give assistance with

respect to criminal cases pending in the United States Attor-

ney’s office to persons who he believed to be members of

organized crime. Respondent held telephone conversations

with such persons pertaining to two specific cases and to how

he might be of assistance in other cases. On two occasions

respondent met secretly at an undercover ‘fence’ operation

with such persons (actually members of the Washington, D.C.

metropolitan police and the F.B.I. posing as mobsters). On the

first occasion respondent discussed how he might be helpful

and how much he would be paid for his assistance. He ac-

cepted $200 which he spent for personal purposes. He agreed

to provide and later did provide information with respect to a

criminal case which his office had handled. On the second

occasion respondent gave confidential information with re-_

spect to another pending criminal matter including secret

information concerning a forthcoming report of the Grand

Jury and described how he might help in the future course of

the prosecution. He was offered $100 which he refused. He

asked for and received $500 which he used for his own benefit.

Respondent made incomplete and inaccurate reports to the

United States Attorney's office concerning his initial contacts

with persons whom he believed to be organized crime figures

and, in particular, he omitted any reference to the person who

was the link to such contacts. a female witness in a criminal

case which he had prosecuted. Respondent in filing a suppos-

edly complete written report at the request of Justice Depart-

ment officials made false and misleading statements and again

omitted any reference to such female witness. Respondent was

arrested in February, 1976 and charged with bribery and

obstruction of justice. He was acquitted of the charges in

October, 1976.'

Respondent is guilty of violating Code of Professional Re-

sponsibility, DR 1-102 (subd [A], pars [3], [4], [6]), ‘““Miscon-

1. The acquittal on the criminal charges is no bar to charges that respondent

violated various disciplinary rules based on the same transactions underlying the

criminal charges. ‘See People ex re! Dowdy v Smith, 65 AD2d 285 and cases cited

therein. see. also. Marter of Schneidkraut. 231 App Div 109.)

A-3

MTR. OF ROBINSON [70 AD2d 209] 211

duct”, DR 4-101, “Preservation of Confidences and Secrets of a

Client”, DR 8-101 (subd [A]), “Action As A Public Official”,

and DR 9-101 (subd [C]), “Avoiding Even the Appearance of

Impropriety”’.

We reject respondent’s plea of entrapment. The investiga-

tion of respondent was not undertaken for the purpose of

‘implanting in the mind of an innocent person the disposition

to commit the alleged offense and induce its commission in

order that” respondent might be prosecuted criminally. (Sor-

rells v United States, 287 US 435, 442; see Sherman v United

States, 356 US 369, 372; United States v Russell, 411 US 423,

435-436.) The initial purpose of the investigation by his superi-

ors was to test respondent’s honesty and his loyalty to his

oath of office as an Assistant United States Attorney—an

entirely legitimate purpose in view of the reports that respon-

dent had deliberately scuttled a criminal prosecution and that

he might be susceptible to bribe offers by criminal elements.’

It was not until January 19, 1976, after respondent had filed

the false written report which omitted any reference to the

female witness and to the numerous contacts that he had had

with the “organized crime figures” after his report of the first

conversation, that a formal criminal investigation was com-

menced.

Furthermore, respondent, an experienced and capable prose-

cutor, was clearly not an “unwary innocent” who was cor-

rupted and motivated to follow a criminal path solely by the

persuasion and deceitful actions of government officials. (See

Sherman v United States, supra, p 372; Sorrells v United

States, supra, pp 441-445.)

We find that respondent’s deliberate decision to do business

with criminal elements for the promise of money in violation

of his oaths and obligations as attorney and public officer was

the product of his own volition not governmental action. The

prosecutor who has ignored his oath and accepted a bribe

cannot charge his misconduct to the government officials who

tempted him without conceding his inherent corruptibility.

Respondent is guilty of misconduct involving a breach of

that duty which is at the very heart of the lawyer-client

relationship—the lawyer's duty of undivided loyalty to his

2. In this respect, the case is similar to People v Archer (68 AD2d 441). We reject

respondent's argument based on People v Isaacson ‘44 NY2d 511) that the charges

should be dismissed for prosecutorial misconduct.

A-4

212 70 APPELLATE DIVISION REPORTS, 2d SERIES

client.’ Further, he is guilty of a breach of the trust placed in

him as a public official and prosecutor and violations of his

oath of office of a most grievous nature.

Respondent’s motion to dismiss the charges should be de-

nied. To the extent that it is consistent with this opinion, we

adopt and confirm the report of the Referee. Respondent

should be disbarred.

CARDAMONE, J.P., Simons, Hancock, JR., DOERR and

MOouL_LE, JJ., concur.

Order of disbarment entered.

3. The Professional Code of Responsibility, EC 5-1 states: “The professional] judg-

ment of a lawyer should be exercised, within the bounds of the law, solely for the

benefit of his client and free of compromising influences and loyalties. Neither his

personal interests, the interests of other clients, nor the desires of third persons

should be permitted to dilute his loyalty to his client’. (Emphasis added: (See

McKinney's Cons Laws of NY, Book 29, Judiciary Law, EC 5-1, p 438, n 1 and cases

cited therein.)

APPENDIX B

B-1

STATE OF NEW YORK SUPREME COURT

APPELLATE DIVISION FOURTH DEPARTMENT

GRIEVANCE COMMITTEE OF THE

SEVENTH JUDICIAL DISTRICT

Petitioner

VS.

DONALD E. ROBINSON, JR.

Respondent

REFEREE’S REPORT

DANIEL A. DE PASQUALE, J.C.C.

Referee

B-2

CONTENTS

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B-3

FOREWORD

On April 10, 1978, the Appellate Division, Fourth Depart-

ment, entered an Order appointing the undersigned, Daniel A.

De Pasquale, J. C. C., to take proofs upon the issues of fact

raised by the petition of the Grievance Committee of the

Seventh Judicial District, verified December 23, 1977, alleging

acts of professional misconduct by the Respondent, Donald E.

Robinson, Jr., and by the answer of the Respondent thereto.

The Order further directed the undersigned to report said

proofs to the Appellate Division, Fourth Department, “together

with his factual findings thereon, without any recommendations

thereon, with all convenient speed.”

Hearings were held in camera at the Hall of Justice,

Rochester, New York, on July 10, 11, and 12, August 9,

October 31, and November 14, 1978. At the November 14,

1978 hearing, proposed findings of fact were argued by the

Petitioner and the Respondent.

This report will contain a summary of the pleadings and

findings of fact with respect to each charge of professional

misconduct. Factors in mitigation will be set forth, as well.

INTRODUCTION

The ultimate issue of professional misconduct is largely

dependent upon the fact-finder’s interpretation of events which,

themselves, are not in dispute. Most of the allegations of the

petition are either admitted, or admitted subject to quali-

fications which focus almost exclusively on the Respondent’s

state of mind at the time of the conduct involved. Thanks to

modern electronics, nearly all transactions and conversations

which formed the basis of the Petitioner’s charges have been

recorded on video tape or audio tape and need not be

reconstructed from less reliable sources.

In September and October, 1976, the Respondent was

tried and acquitted in Federal Court on charges of bribery and

obstruction of justice stemming from the incidents now under

B-4

review. At the outset of this disciplinary proceeding, counsel

stipulated to the introduction of the entire transcript of that

trial, together with all exhibits received therein. Reference to

the trial transcript will be indicated as follows: (T. tr., Vol.

at _), while references to the transcript of the proceeding will

be indicated more simply: (Tr. at _).

BIOGRAPHICAL DATA

The Respondent, Donald E. Robinson, Jr., was born in

Brooklyn, New York and was raised in Rochester, where he

attended St. Thomas Grammar School and McQuaid Jesuit

High School. (Tr. at 462). Thereafter, Respondent attended

Fordham College in New York City, graduating in 1966. (T.

tr., Vol. X, 1671 a).

Respondent was married in the summer of 1966 and he

and his wife, Elizabeth, spent the next two years with the Peace

Corps in Africa. Upon returning, Respondent entered Ford-

ham Law School.

While in law school, Respondent won awards for ex-

cellence in Constitutional Law and Moot Court, became a

member and editor of the Fordham Law Review, and was

elected president of his class all three years of attendance. (Tr.

at 463).

Upon graduation, Respondent accepted employment with

the New York City law firm of Dewey, Ballantine, Bushby,

Palmer and Wood. After approximately two years, in July,

1973, Respondent joined the United States Attorney’s Office in

Washington, D.C. where he was employed as an Assistant U. S.

Attorney at the time the events at issue herein occurred.

After his acquittal on the related criminal charges, Re-

spondent returned to Rochester, New York, where he is now in

private practice of law. Respondent is admitted to practice by

the Supreme Court, Appellate Division, Fourth Department.

Respondent presently resides with his wife and their three

daughters at 4134 St. Paul Boulevard, Rochester, New York.

B-5

SUMMARY OF EVENTS

At all times germaine [sic] to this report, the Respondent,

Donald E. Robinson, Jr., was employed as an Assistant U. S.

Attorney in Washington, D. C., assigned to the Superior Court

Division where he handled felony prosecutions. (Tr. at 179).

From October 1, 1975 to March 2, 1976, the Federal

Bureau of Investigation, together with the Washington, D. C.

Police Department, operated an undercover store-front fencing

enterprise known as P.F.F., Inc. Disguised as a typewriter

repair shop, the store-front served as an outlet for stolen

property in order to provide law enforcement agencies with

information concerning fencing operations and other criminal

activity in the D. C. area. (T. tr., Vol. II at 98-101). Usually,

each transaction was documented by means of video tape and

tape recording. (Tr. at 8).

One visitor to the P.F.F. store-front was Loretta Butler,

who on several occasions, sold stolen checks to the officers.

(Pet. Ex. 24,25). Miss Butler had been a government witness

in a felony case prosecuted by Respondent in the summer of

1975 and, in the course of her discussions with the agents,

indicated that she knew him. (Tr. at 45). The trial resulted in

an acquittal and, thereafter, there was a sexual encounter

between Respondent and Miss Butler.

She told the agents that Respondent had somehow been

responsible for the acquittal in the felony trial at which she

testified. (T. tr., Vol. V at 699). She later, prior to Respond-

ent’s trial in Washington, admitted to government agents that

Respondent, in fact, had never assisted her or any of her

friends, particularly Leon Black. (T. tr., Vol. V at 698 and 701;

stipulation, Tr. at 113-117).

1 At the trial, Loretta Butler related two separate occasions on

which she and the Respondent met for sex. (T. tr., Vol. IV at 576-

591). At the hearing, Respondent testified to only one such incident.

(Tr. at 525). Because this issue is not the focus of this proceeding, no

finding is made with respect thereto.

B-6

During a later visit to P.F.F., Loretta Butler was asked by

the agents if Respondent would be willing to assist their

operation. (Tr. at 49). Miss Butler was promised money for

her assistance in arranging a meeting and a possible deal

between Respondent and P.F.F. (Tr. at 74, T. tr., Vol. V at

707). In fact, as a “small down payment,” Loretta Butler was

later paid twenty dollars ($20.00) for providing information

regarding Respondent. (T. tr., Vol. VI at 790, 849).

While at the P.F.F. store-front, Miss Butler, at the instance

of the agents, attempted several times in late December to

contact Respondent at his office. (Pet. Ex. 24). Finally, on

December 30, 1976, Miss Butler reached Respondent at his

office and handed the telephone to Detective Patrick Lilly of

the Washington Police, who offered Respondent ten-thousand

dollars ($10,000.00) over a period of six months if Respondent

was willing to assist them.? (Pet. Ex. 24, Tr. at 69-72).

Detective Lilly suggested that he and Respondent meet at

National Airport to discuss a possible “business deal”, but

Respondent rejected this site and Lilly agreed to call at a later

date. (Pet. Ex. 24, Tr. at 71, 478).

The following day, Respondent reported the bribery

attempt to his superiors, including Deputy Chief Barcella of the

Major Crimes Division. (Tr. at 479, 481-483). However, he

withheld from this disclosure any references to Loretta Butler.

(Tr. at 482). Barcella then relayed this information to his

superior, U. S. Attorney Earl Silbert.

U.S. Attorney Silbert was apprised of Loretta Butler’s role

only a short while after he learned from Deputy Chief Barcella

that Respondent had disclosed a bribery attempt. That morn-

ing, at approximately 11:15 a.m., Mr. Silbert was visited by

several law enforcement officers involved in the P.F.F. oper-

2 The hearing transcript list [sic] this conversation as occurring

on January 18th, as incident 374. (Tr. at 68). Petitioner’s Counsel,

Gerald La Russo, describes a December 30th conversation, but as

incident 324. (Tr. at 33). Since the December 30th date is consistent

with other facts, it is deemed correct.

B-7

ation who informed him that Loretta Butler had suggested that

Respondent might be susceptible to bribery and told him that

they had made efforts to verify her contentions. (Tr. at 181 ).

Respondent received a second phone call that same day

and was told by the agent that their “boss” was coming from

New York to meet with him. (Tr. at 186-187, 484-485).

Respondent promptly reported this call but, once again, failed

to mention Loretta Butler as a possible link, (Tr. at 187, 484-

485), even after U. S. Attorney Silbert specifically asked

Respondent if the contact could be female. (Tr. at 187).

During his discussion with his superiors, the option of

sending Respondent to the airport wired for sound was dis-

missed, as well as the idea of sending a police imposter. (Tr. at

483). Respondent instead suggested that a device which can

detect the origin of incoming phone calls be installed in his

telephone, but because the U. S. Attorney knew the true origin

of the bribery attempts, no such device was placed on Respond-

ent’s phone. (Tr. at 264, 483).

After Respondent’s disclosures concerning the telephone

calls, U. S. Attorney Silbert and the officers from P.F.F. present

remained puzzled as to why Respondent neglected to mention

Loretta Butler as the possible connection (Tr. at 184);

although, at that time, there was speculation that Respondent

was merely trying to conceal past sexual involvement with Miss

Butler. (Tr. at 251-252). In any event, Deputy Chief Barcella

and Chief Campbell of the Major Crimes Division were

dispatched to examine the relevant tapes to evaluate Respond-

ent’s conduct. (Tr. at 184-186).

After the four-day, New Year’s holiday weekend, Chief

Campbell and Deputy Chief Barcella viewed the video tapes of

incidents in which Loretta Butler either discussed or telephoned

Respondent. (T. tr., Vol. IV at 382). After viewing these

tapes, the “prime” impression left in Barcella’s mind was that

Respondent lied to Mr. Silbert to conceal an illicit relationship

with Miss Butler. (T. tr., Vol. IV at 397).

B-8

After Barcella and Campbell reported back to Attorney

Silbert, Mr. Silbert requested that Respondent be told to furnish

a written memorandum concerning the phone calls and that the

case in which Miss Butler testified be investigated. (Tr. at 193).

Barcella then reviewed the file in the Leon Black case

which Miss Butler suggested had been purposely lost by

Respondent. (T. tr., Vol. IV at 389-391). Although Respond-

ent appeared to have taken all the necessary steps in the

prosecution of the case, Barcella felt that the case was a strong

one for the government which had “ended, inexplicably, in a

not guilty verdict.” (T. tr., Vol. IV at 391).

With respect to the memo, Barcella requested, orally and

then in writing, that Respondent submit a memorandum,

outlining the nature of the calls he had received, any ideas he

may have as to the identity of the caller and any possible

reasons for the call. (Pet. Ex. 2, Tr. at 193; T. tr., Vol. IV at

386-388 ).

Meanwhile, on January 8th and 12th, Loretta Butler

attempted to reach Respondent for the P.F.F. agents. (Tr. at

489 and 493; T. tr., Vol. VI at 772-773, 860-862). Neither

attempt was successful and so, on January 12, Miss Butler left a

message for Respondent to call her at the P.F.F. telephone

number. (Pet. Ex. 25; Tr. at 82).

During this time, Respondent interviewed for and accepted

a position offered him by Monroe County District Attorney

Lawrence Kurlander in Rochester, New York. (Tr. at 490).

Although District Attorney Kurlander expressed some urgency

to Respondent, Respondent advised him that there was a 60-

day notice requirement for departing Assistant U.S. Attorneys

in Washington and suggested that he call U. S. Attorney Silbert

personally. (Tr. at 490). Upon his return to Washington and

on January 13, 1976, Respondent notified Silbert that he had

accepted the position in Rochester. (Tr. at 198-199, 274-275,

492-493). Silbert was, subsequently, contacted by Kurlander

and he turned down Kurlander’s request for Respondent’s early

B-9

release, because of routine staffing demands and because

Respondent’s involvement with P.F.F. was, at that time, unre-

solved. (Tr. at 276-278).

On January 14th, Respondent’s wife received a telephone

call shortly after Respondent left for work and the unidentified

caller stated that “Robbie won’t be around.” (Tr. at 445-447).

Counsel for the Respondent has stipulated that there is no

evidence that this call originated with P.F.F. or its agents. (Tr.

at 444-445). Nevertheless, Respondent did connect this tele-

phone call with P.F.F. and was concerned that efforts were

being made to reach him at his home.

On January 16, Loretta Butler called Respondent at work

and advised him that Detective Lilly was expecting his call.

Respondent telephoned P.F.F. immediately but was told to

wait for a call later that afternoon. (Tr. at 496). Detective

Lilly called Respondent at approximately 4:30 p.m. and tried to

extract from Respondent what, if anything, he had done to

throw the Leon Black case mentioned by Miss Butler. During

this telephone conversation, Respondent declined to discuss the

Leon Black case and advised Lilly that he was involved in a

serious criminal prosecution at his office and would be accom-

panied by a bodyguard for a two-week period. (Pet. Ex. 20, Tr.

at 496). In fact, Respondent was not assigned any bodyguard,

(Tr. at 260, 495-496; T. tr., Vol. X at 1718) and his apparent

motive was to erect a barrier between himself and P.F.F.

While efforts were continuing by P.F.F. agents to deter-

mine the degree to which Respondent was corrupted, Respond-

ent’s superiors pressed their investigation from within by re-

minding him to submit the aforementioned memorandum

regarding the phone calls. (Pet. Ex. 2, Tr. at 551; T. tr., Vol. VI

at 871-872). Reluctantly, Respondent submitted a handwritten

memo to Deputy Chief Barcella of the Major Crime Division.

(Pet. Ex. 6; Tr. at 551-552; T. tr., Vol. VI at 873, Vol. X at

1749-R). Mr. Barcella had the memo typed and several copies

B-10

were returned to Respondent. (Pet. Ex. 7; T. tr., Vol. VI at 874;

Vol. X at 1749-S).3

In essence, the memorandum outlined the situation as it

existed on December 31, 197£ and, once again, Respondent

withheld all information regarding Loretta Butler. This omis-

sion was compounded by Respondent’s failure to note the

repeated attempts by the agents and by Miss Butler to reach

him since that time.

Because, placed against the backdrop of events known to

Attorney Silbert, this memo contained material misstatements

and omissions, he determined that Respondent was, indeed,

attempting to conceal some violation of nis duty and con-

sequently he advised the F.B.I. that they were to conduct a

formal criminal investigation of the Respondent. (Tr. at 209).

Near the end of the following week, Respondent’s wife

received a second telephone call from the same person at their

home. (Tr. at 450; T. tr., Vol. X at 1666). Several days later,

on January 26th, Respondent was contacted by P.F.F. and was

asked to meet with the operation’s “boss.” (Pet. Ex. 25, Tr. at

498-500; T. tr., Vol. VI at 793-796; Vol. X at 1720-1721). It

was agreed that the meeting would take place the following

Thursday and Detective Lilly told Respondent that he would

call him that morning with directions.

Respondent decided to contact Loretta Butler so that he

could discuss P.F.F. with her and find out their designs for him.

(Tr. at 500; T. tr., Vol. X at 1722). A rendezvous was arranged

and, on the evening of January 27th, Miss Butler met Respond-

3 Indications are that this memo was drafted on Friday the 16th,

presumably before Respondent talked to P.F.F. agents that day. At

that point, there had been no further discussions between Respondent

and P.F.F. since the December 3lst call. Nevertheless, Respondent

stated that he had “heard nothing further,” which was untrue in light

of the many attempts made by Loretta Butler to contact him. More

importantly, on January 19th, after his conversation with Lilly on

January 16th, Respondent initialed the typed memo, thereby vouch-

ing for its truthfulness.

B-11

ent on Capitol Hill.4 During this discussion, Respondent was

told that he “would be disappearing” if he failed to show up for

a meeting.5 (Tr. at 501, T. tr., Vol. V at 720; Vol. X at 1724).

Because Miss Butler knew very little about P.F.F., she was

unable to relay much information to Respondent.

Respondent was contacted on the morning of January 29th

and was given directions to the store-front. Upon his arrival at

lunchtime, Respondent was introduced to the countermen,

Detective Lilly and Agent Hartman, as well as the visiting

“boss” played by Richard Genova of the F.B.I. Agent Genova

asked Respondent about the Leon Black case to determine

whether Respondent had acted improperly. (Pet. Ex. 22; Pet.

Ex. 16; Tr. at 132). Although seemingly reluctant to discuss the

specifics of the Leon Black case, Respondent did state that he

was able to “keep back certain evidence.” (Pet. Ex. 16 at p. 4).

Genova questioned Respondent about the type of assistance he

could provide and Respondent gave examples of how he could

sabotage pending cases. (Pet. Ex. 16 at pp. 4 & 16). Genova

asked the Respondent for his assistance with a case the agents

believed was still pending. (Pet. Ex. 16, p. 11, Tr. at 132-133;

T. tr. Vol. VII at 964, 989-990, 1026). Before leaving the store-

front, Respondent accepted two-hundred dollars ($200.00)

which had been counted out and placed on the counter before

him.® (Tr. at 134, 504). Respondent spent this two-hundred

dollars ($200.00) on personal items. (Pet. Ex. 28, p. 3).

4 At the trial in Washington, the prosecutor argued that the date

of this meeting was not January 26th but January 29th. (T. tr., Vol. V

at 721-722). This would indicate that the threat made by P.F.F. was

not communicated to Respondent until after this meeting and,

therefore, could not possibly be the primary reason for his agreeing to

meet with P.F.F. agents. I have reviewed the record and find no

testimony by Miss Butler that connects this meeting to January 29th.

In fact, she later states that she doesn’t remember the date. (T. tr.,

Vol. V at 727).

5 Miss Butler was conveying to respondent the very threat she

had heard Det. Lilly make in her presence on the 26th. (Pet. Ex. 25,

Tr. at 105).

6 At both the disciplinary hearing and the earlier criminal trial,

Respondent insisted that the two-hundred dollars ($200.00) was

B-12

Upon returning to the office, Respondent checked into the

status of the case against Marion Toye, the name supplied him

at P.F.F. (Tr. at 510, 577; T. tr. Vol. VII at 991, Vol. X at

1733). Finding no such case listed, Respondent promptly

telephoned the store-front and informed them that his office

had no case against such an individual. (Tr. at 510, 577-578; T.

tr. Vol. VII, at 1028). Detective Lilly asked Respondent to

double check and Respondent complied. The information

which Respondent supplied regarding Marion Toye was avail-

able from sources other than the U. S. Attorney’s office. (Tr. at

283).

The following day, Detective Lilly contacted Respondent

to see if Respondent could assist P.F.F. with another pending

case, that of one Milton Glover. (Tr. at 512; T. tr. Vol. X at

1734, Vol. VII at 1031). Milton Glover’s name had been

selected because the information which Respondent provided

the agents with respect to Marion Toye was not exclusively

within the possession of the U. S. Attorney’s office, while any

information on Glover revealed by Respondent would be

unique to the U. S. Attorney’s office and thus confidential. In

this way, it could be determined whether or not Respondent

would actually divulge information from the U. S. Attorney’s

Office files. (Tr. at 283, 284; T. tr. Vol. VII at 1114-1115).

U. S. Attorney Silbert also felt that, were Respondent to

disclose information from the Glover file, the government could

make a better case against him at trial. (Tr. at 285).

No action was taken by Respondent upon this request for

nearly two weeks. On February 10th, Detective Lilly tele-

payment for his appearance January 29th, at P.F.F. and was offered

with no strings attached. In support of this view, he cites a statement

by Agent Genova made during their discussions that day, wherein

Genova indicated, “let me give you this . . . because at least you came

today.” (Pet. Ex. 16, p 13). Petitioner, as did the government at the

criminal trial, contends that it should have been obvious to Respond-

ent that the money was, at least in part, advance payment for

information sought in the Marion Toye case. In fact, moments after

Respondent accepted the money, Agent Genova stated, “This is like a

test.” (Pet. Ex. 16, p 28).

B-13

phoned Respondent to inquire into the progress of Respond-

ent’s efforts. (Pet. Ex. 19; Pet. Ex. 4, Tr. at 515; T. tr., Vol. VII

at 1039, Vol. X at 1736). Respondent indicated that he had

been busy but that he would look into the matter within the

next few days. Thereafter, Respondent obtained the Milton

Glover file and reviewed it. (T. tr., Vol. X at 1737).

On February 13th, Respondent contacted the undercover

Officers at P.F.F. to arrange a meeting and to tell them that he

had information concerning Milton Glover. (Pet. Ex. 5; Pet.

Ex. 18; Tr. at 516; T. tr., Vol. VII at 1047-1048). Later that

afternoon, Respondent visited the P.F.F. store-front.

During the second visit to P.F.F., the information disclosed

by Respondent regarding Milton Glover was partly confidential

information,’ partly material available to the general public

and partly information fabricated by Respondent ex-

temporaneously. (Pet. Ex. 17, Pet. Ex. 21; Tr. at 518-520, Tr.

at 232-234, 289; 297). Certain information which might have

been helpful to Milton Glover’s defense was not disclosed by

Respondent at this meeting. (Tr. at 298-301). Respondent

conceded at the hearing that one fabrication related by him to

the effect that Glover was possibly turning informant, could

have been dangerous for Glover if P.F.F. was actually a Mafia-

type organization as represented by the undercover officers.

(Pet. Ex. 17, p. 2; Tr. at 520).

During this meeting, Detective Lilly offered Respondent

one-hundred dollars ($100.00) for his information. Respond-

ent refused and, instead, requested five-hundred dollars

($500.00 ) for his services. This amount was then tendered and

Respondent accepted it. (Pet. Ex. 17, pp. 8-10; Pet. Ex. 21; Tr.

at 521). Respondent cites both his appetite for more money

and his desire to make the information appear more valuable as

7 Respondent disclosed that the grand jury considering Glover’s

case had voted an indictment. The nature of the charges it contained

was also discussed. Finally, Respondent supplied the undercover

officers with the name of a police witness who testified before the

grand jury.

B-14

reasons for setting a higher price. (Tr. at 521-522). Shortly

thereafter, Respondent left the store-front. The next day,

Respondent spent nearly all of the five-hundred dollars

($500.00) on furniture ordered from a nearby store. (Tr. at

558, T. tr., Vol. X at 1771).

After the February 13th meeting, there were no further

contacts between Respondent and P.F.F. or any of the under-

cover Officers.

At approximately 10:00 p.m. on February 28th, Respond-

ent was arrested at his home by special agent Thomas Easton of

the F. B. I. and was taken to District Police Headquarters in

Washington, D. C. (Tr. at 333, 522; T. tr., Vol. VIII at 1380-

1381). At Police Headquarters, Agent Easton interviewed

Respondent and took notes of their discussions. (Pet. Ex. 27,

28: Tr. at 333, 522-523, T. tr., Vol. VIII at 1383, Vol. X at 1749-

S). Respondent’s version of the events leading up to his arrest

was accurate and fairly complete. Although Respondent did,

on this occasion, admit knowing Loretta Butler, he denied any

sexual involvement with her. (Pet. Ex. 28, Tr. at 523, T. tr.,

Vol. IX at 1470). At the close of this interview, Agent Easton

informed Respondent that the people with whom he dealt at

the P.F.F. storefront were, in fact, undercover law enforcement

officers. (T. tr., Vol. IX at 1499).

Respondent was eventually tried on criminal charges aris-

ing out of his involvement with the P.F.F. store-front and was

acquitted on all counts.

B-15

SUMMARY OF THE PLEADINGS

The following is a brief outline of the issues as joined by

the pleadings and as narrowed by stipulations of counsel at the

outset of this proceeding:

First Charge

The Petition alleges that Respondent on January 29, 1976

visited the P.F.F. store-front operation, without the author-

ization of his superiors, and while there, disclosed the kinds of

cases he could influence and the methods at his disposal. The

petition further alleges that Respondent accepted two-hundred

dollars ($200.00) for the purpose of influencing his actions as

an Assistant United States Attorney for the District of Colum-

bia.

The Respondent admits having visited the P.F.F. store-

front and having indicated to the undercover officers present

various ways in which he could assist them, but denies that

what he told them was true. With respect to the two-hundred

dollars ($200.00), Respondent admits having accepted the

money, but denies that he did so for the purpose of influencing

his official actions.

Second Charge

The Petition alleges that, at the store-front, the undercover

officer supplied Respondent with a case in which they sought

information. That, after viewing the file, Respondent contacted

the store-front to advise the officer that, since the case was

completed, he could be of no assistance. The petition further

alleges that Respondent took this action without authorization

and in return for the money he had received earlier in the day.

Respondent admits informing the officers at P.F.F. that

since the case in question was completed, he could be of no

assistance, but Respondent asserts that he told them this

primarily because he had no intention of assisting them.

Respondent denies that he relayed this information in return for

B-16

the two-hundred dollars ($200.00) but, rather, insists that the

money was paid to him merely for keeping his appointment at

the store-front on January 29th.

Third Charge

The petition alleges that Respondent, in response to a

request by Detective Lilly of the P.F.F. operation, supplied

information of a confidential nature with respect to a pending

case. The petition further alleges that Respondent told the

officers that he would continue to assist them with the case.

Finally, the petition alleges that Respondent refused the

amount, one-hundred dollars ($100.00) tendered by the agent

for his assistance and, instead, took five-hundred dollars

($500.00), for the purpose of influencing his actions as an

Assistant U. S. Attorney.

Respondent admits reviewing the file, visiting the P.F.F.

store-front and disclosing certain information to Detective Lilly.

However, Respondent denies that the information was con-

fidential because it was available to the defendant and his

attorney. Respondent also admits that he told Detective Lilly

that he would continue to assist him with the case, but denies

that he was telling the truth when he said this. With respect to

the money, Respondent admits accepting it but denies that he

did so for the purpose of influencing his official actions.

Fourth Charge

The petition alleges that Respondent was requested by his

superiors to submit a memorandum detailing the substance of

the telephone solicitations he had received and, in response

thereto, submitted a report which contained inaccurate, false

and misleading statements.

Respondent admits this charge.

Disciplinary Rules

The petition alleges that Respondent’s conduct violated the

following disciplinary rules:

DR i-102(3), in engaging in illegal conduct involving

moral turpitude; DR 1-102(4), in engaging in conduct

involving dishonesty, fraud, deceit, or misrepresentation;

DR 1-102(5), in engaging in conduct that is prejudicial to

the administration of justice, and DR 1-102(6), in engag-

ing in conduct that adversely reflects on his fitness to

practice law.

DR 4-101, in failing to preserve the confidence and

secrets of a client.

DR 5-107, in failing to avoid influence by others than

his client and in accepting from one other than his client

something of value related to his representation of his

client.

DR 7-101, in failing to seek lawful objectives of his

client and in failing to exercise professional judgment in

the best interest of his client.

DR 8-101, in accepting something of value from a

person when the lawyer knows or it is obvious that the

offer is for the purpose of influencing his action as a public

Official.

DR 9-101, in stating or in implying that he was able to

influence improperly or on irrelevant grounds a tribunal or

public official.

Affirmative Defenses

Respondent, in addition to denying material allegations of

fact set forth in the petition, raises an affirmative defense which,

in essence, charges that most or all of the professional mis-

conduct attributed to him, to the extent that it is proven,

occurred as a result of improper governmental inducement

amounting to blackmail, coercion, duress and entrapment.

B-18

In addition, Respondent also sets forth a defense of a res

judicata and argues that acquittal of all the related criminal

charges constitutes a bar to this disciplinary proceeding.

FINDINGS

The petition contains four (4) charges, followed by a

listing of the six disciplinary rules alleged to have been violated.

Patterned this way, the petition alleges a violation of all six

disciplinary rules with respect to each charge. The proposed

findings submitted by Petitioner suggest fewer violations than

are alleged by the petition. Consequently, the Findings which

follow address Petitioner’s allegations, as narrowed by the

proposed findings.

FIRST CHARGE—FIRST VISIT TO P. F. F.

DR 1-102—Misconduct

(3) With respect to Petitioner’s allegation that Respondent

has engaged in illegal conduct involving moral turpitude in

visiting the P.F.F. store-front without authorization, disclosing

the types of cases he could improperly influence and accepting

two-hundred dollars ($200.00) from individuals he believed

were engaged in organized crime, I find that, Respondent did

not engage in “illegal” conduct and was acquitted of all

criminal charges stemming from his involvement with P.F.F.

(4) With respect to Petitioner’s allegation that Respondent

engaged in conduct involving dishonesty, fraud, deceit or

misrepresentation, I find that, while Respondent did deceive

the undercover officers in misrepresenting to them the ways in

which he could assist them, he owed no duty to them since he

believed that they were members of organized crime.§

8 To the extent that, with this charge, Petitioner claims Respond-

ent misrepresented his intentions and capabilities to the P.F.F.

undercover officers, it departs from the basic premise of the petition,

which portrays Respondent as a willing partner in the P.F.F.

ge

B-19

(5) With respect to Petitioner’s allegation that Respond-

ent engaged in conduct prejudicial to the administration of

justice, I find that since there was no real “investigation” into

actual organized crime to thwart and since P.F.F. was actually

comprised of undercover law enforcement officers, Respond-

ent’s conduct, at most, constituted an “attempt” to engage in

conduct prejudicial to the administration of justice. Since, the

Code of Professional Responsibility, unlike the Penal Law, does

not condemn inchoate violations, technically, there was no

violation of this disciplinary rule.

(6) With respect to Petitioner’s allegation that Respond-

ent engaged in conduct that adversely reflects on his fitness to

practice law, I find that Respondent, in representing that he

could improperly influence pending cases for money, did

violate DR 1-102 (6). Regardless of Respondent’s state of

mind at the time of his visit to the P.F.F. store-front on January

29, 1976, and his reasons for being there, his mere presence

demonstrates a weakness and lack of judgment and constitutes

a violation of DR 1-102 (6). A prosecutor is charged with the

awesome responsibility of representing the public in its quest to

identify, and convict violators of the law, yet he must act in a

just and impartial way. To that end, he is vested with a vast

amount of control and discretion. It is not a job for the

squeamish or the temptable. A prosecutor should anticipate

that attempts will be made to corrupt and compromise him and

he should vigorously and categorically repel all such efforts. To

the extent that Respondent failed to do so, he has given cause

to doubt his fitness.

DR 4-101—Preservation of Confidences

and Secrets of a Client

With respect to Petitioner’s allegation that Respondent

failed to preserve the confidences and secrets of client [sic] in

influence-buying scheme. If Petitioner is alleging a violation of DR }-

102 (4) because of omissions made at the time Respondent first

reported the telephone solicitations to his superiors, then neither the

petition nor the proposed findings recite facts which would support

such a violation.

B-20

representing to the P.F.F. undercover officers the types of cases

he could improperly influence, I find that the relatively meager

information imparted to the officers on this January 29th visit,

even if true, cannot fairly be construed as “confidences” or

“secrets.”

DR 5-107—Avoiding Influence by Others than Client

With respect to Petitioner’s allegation that Respondent

accepted from one other than his client a thing of value related

to his employment in taking the two-hundred dollars ($200.00 )

offered by Detective Lilly, I find that Respondent did violate

DR 5-107. His acceptance of the money, even if he believed it

to be payment for his appearance at the P.F.F. store-front, and

nothing else, constitutes an impermissible quid pro quo, and

demonstrates a lack of independence from which a conflict of

interest could reasonably be inferred.

DR 7-101—Representing a Client Zealously

With respect to Petitioner’s allegation that Respondent

failed to seek the lawful objectives of his client and failed to

exercise his professional judgment in the best interests of his

client, I find this disciplinary rule inapplicable to the conduct in

question.

The rule, to the extent it prohibits an attorney from

intentionally failing “to seek the lawful objectives of his client

through reasonably available means permitted by law and the

Disciplinary Rules,” requires an attorney to advocate his

client’s interests in a socially responsible and legal manner.

Analysis of the underlying ethical considerations suggests that

DR 7-101 (a) (1) is aimed at compelling zealous representa-

tion but within honorable limits. Conflicts of interest do not

appear to be its target and would be better addressed under DR

5-107.

The rule does not prohibit an attorney from “failing to

exercise his professional judgment in the best interests of his

client” as is suggested by the Petitioner. DR 7-101 (B) (1)

allows an attorney to, “where permissible, exercise his profes-

B-21

sional judgment to waive or fail to assert a right or position of

his client.” While the broad societal purpose served by the

Disciplinary Rules militates against crabbed interpretations,

Petitoner’s inversion of this rule is inappropriate.

DR 8-101—Action as a Public Official

With respect to Petitioner’s allegation that Respondent

accepted something of value from a person when he knew or

when it was obvious that the offer was for the purpose of

influencing his actions as a public official, I find that Respond-

ent did violate DR 8-101. Although Respondent spent consid-

erable time at both the trial and the hearing attempting to

prove that he accepted the two-hundred dollars ($200.00) on

January 29th, solely as payment for his appearance at the store-

front that day, the disciplinary rule prohibits a public official

from accepting anything of value when it is obvious that the

offer is for the purpose of influencing his actions as a public

Official.2 This is an objective test. Considering the circum-

stances of Respondent’s visit to the store-front and despite the

statement by Detective Lilly to the effect that the money was

payment for Respondent’s keeping his appointment, it was

obvious that the two-hundred dollars ($200.00) offered did

come with strings attached. Even assuming, arguendo, that the

payment was only for Respondent’s appearance at the store-

front, that in and of itself demonstrates that his actions as a

public official were influenced.

DR 9-101—Avoiding Even the Appearance of Impropriety

With respect to Petitioner’s allegation that Respondent

stated or implied that he was able to influence improperly or

upon irrelevant grounds a tribunal or public official, I find that

Respondent did violate DR 9-101. Since Respondent clearly

stated that he would be able to improperly influence pending

cases (on grounds other than merit), he violated this rule and

the fact that he may not have meant what he said is immaterial.

DR 9-101 adopts a strict liability standard and it focuses on the

appearance given by certain conduct, rather than evaluations of

guilt or other subjective elements.

9 See, Footnote 6, supra.

B-22

SECOND CHARGE—MARION TOYE FILE

DR 1-102—Misconduct

(3) With respect to Petitioner’s allegation that Respondent

engaged in illegal conduct involving moral turpitude in dis-

closing that Marion Toye had been convicted and was on

parole and he could be of no assistance to P.F.F., I find that

Respondent did not engage in “illegal” conduct and was

acquitted of all criminal charges stemming from his in-

volvement with P.F.F.

(4) With respect to Petitioner’s allegation that Respondent

engaged in conduct involving dishonesty, fraud, deceit or

misrepresentation, I find that Respondent did not violate DR I-

102 (4).

(5) With respect to Petitioner’s allegation that Respondent

engaged in conduct prejudicial to the administration of justice, I

find that Respondent did not violate Dr. 1-102 (5).

(6) With respect to Petitioner’s allegation that Respondent

engaged in conduct that adversely reflects on his fitness to

practice law, I find that Respondent’s continued cooperation

with P.F.F., even if feigned, demonstrates weakness and lack of

judgment and constitutes a violation of DR 1-102 (6). (See,

Finding under sub (6) of DR 1-102 in the First Charge, p. 19)

DR 4-101—Preservation of Confidences and

Secrets of a Client

With respect to Petitioner’s allegation that Respondent

failed to preserve the confidences and secrets of a client in

disclosing information on Marion Toye, I find that the informa-

tion was available to the general public and cannot fairly be

construed as “‘confidences”’ or “secrets.”

DR 5-107—Avoiding Influence by Others Than the Client

With respect to Petitioner’s allegation that Respondent

accepted from one other than his client a thing of value related

to his employment, I find that respondent did violate DR 5-107

B-23

by accepting the two-hundred dollars ($200.00) offered by

Detective Lilly. Although Respondent insists that he accepted

the two-hundred dollars ($200.00) on January 29th as payment

for his appearance at the store-front that day and nothing else,

it is clear from the record that the Marion Toye case was

discussed before the money was counted out and placed on the

counter. Under Respondent’s view, he would have been free to

ignore Agent Genova’s request for assistance with Marion

Toye’s case, and yet, he did contact the store-front later that

day. Even if, in Respondent’s mind, he considered the money

as payment for his appearance, Respondent would not have

been so naive and so unrealistic as to assume that P.F.F.

personnel shared this view, despite their assurances to the

contrary. To the extent Respondent’s acceptance of the two-

hundred dollars ($200.00) constituted advanced payment for

his disclosures regarding Marion Toye, it demonstates improper

influence from which a conflict of interest can reasonably be

inferred.

DR 7-101—Representing a Client Zealously

With respect to Petitioner’s allegation that Respondent

failed to seek the lawful objectives of his client and failed to

exercise his professional judgment in the best interests of his

client, I find this disciplinary rule inapplicable to the conduct in

question. ( See, Finding under DR 7-101 in First Charge p. 20)

DR 9-10]—Avoiding Even the Appearance of Impropriety

With respect to Petitioner’s allegation that Respondent

stated or implied that he was able to influence improperly or

upon irrelevant grounds a tribunal or public official in dis-

closing information regarding Marion Toye, I find that no such

statement or implication was made.

B-24

THIRD CHARGE—MILTON GLOVER FILE

DR 1-102—Misconduct

(3) With respect to Petitioner’s allegation that Respond-

ent has engaged in illegal conduct involving moral turpitude in

divulging information of a confidential nature to Detective Lilly

and accepting five-hundred dollars ($500.00) as payment, I

find that Respondent did not engage in “illegal” conduct and

was acquitted of all criminal charges stemming from his

involvement with P.F.F.

(4) With respect to Petitioner’s allegation that Respond-

ent engaged in conduct involving dishonesty, fraud, deceit or

misrepresentation, I find Respondent did not violate DR 1-102

(4).

(5) With respect to Petitioner’s allegation that Respond-

ent engaged in conduct prejudicial to the administration of

justice, I fnd that Respondent did not violate DR 1-102 (5).

(6) With respect to Petitioner’s allegation that Respond-

ent engaged in conduct that adversely reflects on his fitness to

practice law, I find that Respondent’s involvement with P.F.F.,

by this time, bordered on active participation and demonstrates

a serious lack of judgment and moral resolve. Regardless of the

origin of the pressures claimed to be motivating Respondent,

his failure to resist them and follow the proper course of action

casts doubt upon his abilities and constitutes a violation of DR

1-102 (6).

DR 4-101—Preservation of Confidences and

Secrets of a Client

With respect to Petitioner’s allegation that Respondent

failed to preserve the confidences and secrets of a client in

revealing to Detective Lilly information taken from the Milton

Glover file, I find the Respondent violated DR 4-101.

Although information which would have been helpful to P.F.F

had it truly been an organized crime operation was withheld,

material of a confidential nature was revealed. This constitutes

B-25

a violation of DR 4-101. Even though the aggregate effect of

all of the information disclosed including Respondent’s fabric-

ations, would have been to repulse, or at least deter, genuine

efforts to sabotage Milton Glover’s case had they been made, it

is nonetheless, appropriate to isolate the improper disclosures

and measure them against the standard embodied by

DR 4-101.

DR 5-107—Avoiding Influence by Others than Client

With respect to Petitioner’s allegation that Respondent

accepted from one other than his client a thing of value related

to his employment, I find that Respondent violated DR 5-107.

There is no suggestion made by Respondent with respect to the

five-hundred dollars ($500.00) but that it was given in ex-

change for information on the Glover file.

DR 7-102—Representing a Client Zealously

With respect to Petitioner’s allegation that Respondent

failed to seek the lawful objectives of his client and failed to

exercise his professional judgment in the best interest of his

client, I find this disciplinary rule inapplicable to the conduct in

question. (See, Finding under DR 7-101 in First Charge, p.

20)

DR 8-101—Action as a Public Official

With respect to Petitioner’s allegation that Respondent

accepted something of value from a person when he knew or

when it was obvious that the offer was for the purpose of

influencing his actions as a public official, I find that Respond-

ent violated DR 8-101. The negotations carried on by Re-

spondent as to the price make it crystal clear that the payment

was for information, some of which was confidential.

DR 9-10]—Avoiding Even the Appearance of Impropriety

With respect to Petitioner’s allegation that Respondent

stated or implied that he was able to influence improperly or

upon irrelevant grounds a tribunal or public official, I find that

B-26

Respondent did violate DR 9-101. Even if Respondent never

intended to assist P.F.F. with the Milton Glover case, his

representations to that effect come within the proscription of

this disciplinary rule.

FOURTH CHARGE—MEMORANDUM TO SUPERIORS

DR 1-102—Misconduct

With respect to Petitioner’s allegation that Respondent

engaged in conduct involving dishonesty, fraud, deceit or

misrepresentation in failing to disclose the identity of the

individual who instigated the call and the fact that additional

contacts had been made, I find that Respondent violated DR I-

102. The allegation is admitted by the Respondent and his

proposed findings of fact contain a conclusion that DR 1-102

was violated.

ADDITIONAL FINDINGS

On August 8, 1978, Petitioner called an additional witness,

who testified as to facts not relevant to the original charges

presented in the petition. Instead, her testimony focused on

certain conduct alleged to have occurred during the course of

this proceeding.

During cross-examination, it became apparent that a

potential for self-incrimination existed and, so, counsel was

appointed for this witness.

At a later appearance, on October 11, 1978, the witness

asserted her Fifth Amendment privilege and, as a result, cross-

examination by Respondent’s counsel was thwarted. Respond-

ent then moved to strike her direct testimony. This Court

denied Respondent’s motion, by letter dated November 9,

1978. (Ct. Ex. 1)

Subsequent examination of this issue, however, indicates

that the November 9th ruling may result in a denial of

B-27

Respondent’s due process rights and, therefore, the under-

signed recommends that these allegations regarded Respond-

ent’s conduct during the proceeding, be re-submitted for formal

consideration by the Grievance Committee. The referee will

not consider them in the context of this proceeding.

By way of explanation, two points should be made. First,

Matter of Ruffalo, 390 US 544, stands for the proposition that

an attorney who is subjected to disbarment proceedings is

entitled to procedural due process and this includes fair notice

of the charges against him. While an attorney’s conduct during

a disciplinary proceeding may be a factor in determining its

results ( See, 1 Carmody-Wait 2d, Sec. 3:211 and the cases cited

therein), where the conduct in question concerns activities

outside the courtroom and is made the subject of additional

allegations by the Petitioner, formal charges should be brought.

Second, Respondent’s position that the prevented cross-

examination was directed at a highly material issue of fact may

be the better view. The witness in question refused to answer

when the cross-examination turned to her possible consumption

of drugs, which would reflect on her ability to accurately record

the events to which she testified on direct. Such an issue would

not be collateral. (People v. Freeland, 36 N.Y. 2d 518, 525;

People v. Webster, 139 N.Y. 73, 87).

AFFIRMATIVE DEFENSES

Respondent’s answer contains an affirmative defense

which charges that any misconduct attributable to him occurred

as a result of improper governmental inducement amounting to

blackmail, coercion, duress and entrapment. This contention is

set forth as Respondent’s proposed finding No. 22. In essence.

Respondent charges that, in the absence of any evidence

indicating that he was predisposed to commit the various acts

which form the basis of the Petition, the methods employed by

the undercover officers were improper and excessive, the impli-

cation being that the officers not only provided Respondent

B-28

with an opportunity to commit the acts charged but took steps

to ensure that Respondent actually did so. Their actions, it is

charged, amount to entrapment.

Entrapment under New York State Law as applied in

criminal prosecutions is measured by both objective and subjec-

tive criteria. (Penal Law Section 40.05) An analysis of the

methods employed by the police, as well as the state of mind of

the Defendant is required.

With respect to the methods employed by the undercover

officers in this investigation, it cannot be said that Respondent’s

due process rights were violated or that the agents were

unjustified in pursuing their inquiry into Respondent’s

corruptibility. Faced with the implication of a confessed

prostitute and obvious thief, that an Assistant United States

Attorney was for sale, the undercover agents acted responsibly

in pursuing this possibility. Their suspicions, fortified by

Respondent’s lack of candor regarding Loretta Butler and

unallayed by examination of the inexplicable Leon Black case,

prompted a full investigation. Their dogged persistence,

though it had disastrous consequences for Respondent, can be

attributed to the agents’ realization that they had little time

with which to work, in light of the impending departure of

Respondent for Rochester and the climax of the P.F.F. Fencing

[sic] operation which was drawing close.

While the Courts of New York are not reluctant to

condemn unconscionable police conduct when it occurs ( People

v. Isaacson, 44 N.Y. 2d 511) the malfeasance present here does

not. rise to the level needed to insulate its target from all

consequences. To the extent that Respondent may have been

unfairly pressured by the tactics employed here, it is more

appropriately addressed as a factor in mitigation, infra. p. 30.

I find that the Respondent, at least at the time of the first

contacts, was not predisposed to commit the acts which, [sic]

form the basis of the Petition. Nevertheless, I find that the risks

that he would succumb to the agents’ solicitations were substan-

tially increased by virtue of Respondent’s own peculiar

B-29

vulnerability. Assuming, arguendo, that it was not the lure of

financial rewards but the fear of exposure of his relationship

with Loretta Butler that led Respondent to the threshhold [sic],

this explanation is equally unacceptable. That Respondent

elected to involve himself with Loretta Butler is not the focus of

this proceeding. However, to the extent that he thereby

provided others with a wedge to drive between himself and the

agency to which he owed a duty of loyalty, he cannot be

excused.

Respondent’s affirmative defense of res judicata or collate-

ral estoppel is also without merit. An acquittal on criminal

charges will not bar disciplinary proceedings arising out of the

same acts. (Matter of Schneidkraut, 231 App Div 109). Not

only are different societal purposes served by professional

disciplinary proceedings, but the quantum of proof required at

a disciplinary proceeding is less than that required in criminal

prosecution. (See, 76 ALR 3d 1031)

B-30

FACTORS IN MITIGATION

Because the findings of misconduct set forth above repre-

sent a technical application of the Code of Professional Respon-

sibility to the facts as accepted by the referee, it is appropriate

to list factors in mitigation. These factors represent elements of

proof which would tend to soften the impact of findings, while

failing to qualify as actual defenses.

Throughout this report, the undersigned has, consistent

with the Appellate Division Order, scrupulously avoiding [sic]

making any “recommendations” either explicitly or implicitly.

The following factors are set forth only for the purpose of

offering a more complete and balanced picture of the exhibits

and testimony presented.

1) Respondent introduced into evidence seven letters of

reference on his behalf. A brief synopsis follows:

(Resp. Ex. B)—Eugene N. Hamilton, Judge of the

Superior Court of the District of Columbia (dated

7/10/78)

Wrote that, in prosecuting matters before him,

Respondent “conducted himself in a very

forthright, honest, ethical and competent man-

”

ner.

(Resp. Ex. C)—Lauriston H. Long, attorney, United

States Department of Labor

Wrote that his family and Respondent’s grew

very close while living nearby in Gaithersburg,

Maryland. Observed that Respondent led a

“clean” [sic] and resourceful life.”

(Resp. Ex. D)—Bradford J. Race, Jr., attorney,

Dewey, Ballantine, Bushby, Palmer & Wood, New York

City

Worked together and maintained close social

contact while at firm with Respondent. Stated

that Respondent is an “honest person, having

good moral character and integrity.”

B-31

(Resp. Ex. E)—David G. Larimer, attorney, Roches-

ter, New York

Has known Respondent since both attended

McQuaid Jesuit High School in Rochester. Re-

commended Respondent for position with

United States Attorney’s Office in Washington.

Wrote that Respondent was highly regarded as

a prosecutor with that office.

(Resp. Ex. F)—Kenneth Michael Robinson, attorney,

Washington, D.C.

Worked together at United States Attorney’s

Office in Washington (no relation). Character-

ized Respondent as “bright, honest, hard-

working and proud of his being a prosecutor.”

Claimed that pressures from leadership at U. S.

Attorney’s Office discouraged colleagues from

lending support to Respondent.

(Resp. Ex. G)—Joseph D. Valentino, Assistant Dis-

trict Attorney, Rochester, New York

Has known Respondent from childhood. Wrote

that Respondent is “respected by all and he and

his family are very well-liked in the commu-

nity.”

(Resp. Ex. H)—John P. Lomenzo, Jr., Attorney,

Rochester, New York

Has known Respondent since high school.

Wrote that Respondent is “a good family man

who spends as much time as he can with his wife

and children.”

2) The record reveals an impressive personal and profes-

sional history, but for the conduct under review herein. After

obtaining a Catholic School education in Rochester, New York,

Respondent successfully completed undergraduate school at

Fordham in New York City. Following undergraduate school,

B-32

Respondent and his wife participated in the Peace Corps

program and, upon their return to the United States, Respond-

ent entered Fordham Law School.

Respondent’s Law School career was marked by academic

successes. His election as class president for all three years of

attendance suggests that he was well-liked and respected by his

fellow students.

After law school, Respondent worked for a prestigious

Wall Street law firm and was highly thought of as an associate.

(Resp. Ex. D). Respondent then joined the United States

Attorney’s office in Washington, D. C., where he established

himself as a capable and hard-working prosecutor. (Resp. Exs.

E and F). That the Monroe County District Attorney would

offer so young an attorney a position of great responsibility with

his office is also a positive reflection of Respondent’s skills.

3) After Respondent’s arrest on February 28, 1976, he was

taken to District Police Headquarters in Washington, D.C.

Respondent voluntarily waived his right to remain silent and

his right to counsel in order to cooperate with the F.B.I. He

submitted to a thorough interview and, measured against the

facts ultimately brought to light, his version of the events

‘eading up to his arrest was accurate and nearly complete. He

cooperated with the agent even though he was, at that time,

unaware that most of the information he was imparting was

already known to the government.

4) Respondent was acquitted of all criminal charges

arising out of the incidents now under review. Although an

acquittal of criminal charges does not serve as a bar to

professional disciplinary action (See p. 29 supra), there is

authority for the proposition that such acquittal should be taken

into consideration, presumably as a mitigating factor. See, 76

ALR 3d 1047-1049.

5) Although Respondent’s claimed lack of culpability due

to entrapment cannot be sustained, supra, pp. 28-29, the level

of police instigation present here cannot be ignored.

B-33

On hindsight, it can be seen that Respondent was reluctant,

at least initially, to involve himself with people he genuinely

believed were members of organized crime. The undercover

agents can fairly be characterized as persistent in their efforts to

obtain Respondent’s participation in their phony venture. The

enlistment of Loretta Butler with the promise of payment in the

event of a successful arrangement between Respondent and

P.F.F. must be viewed as a calculated effort to ensure impor-

tuning of Respondent. Their casual threats made in Loretta

Butler’s presence regarding the consequences of Respondent’s

failure to cooperate were certain to be communicated to

Respondent and cannot be condoned as responsible police

work.

Respectfully submitted,

’

Daniel A. De Pasquale, J.C.C.

Referee

Dated: May 4, 1979

Number

15

16

B-34

APPENDIX

PETITIONER’S EXHIBITS

Description

A Xerox Copy of a Document entitled ‘““Appointment

Affidavits” dated 7/23/73

A Xerox Copy of a Document entitled “Bribery

Investigation” dated 1/6/76

A Xerox Copy of a six-page Document entitled

“Lilly-Robinson Phone Conversation” dated 1/16/76

A Xerox Copy of a two-page Document entitled

“Lilly-Robinson Phone Conversation” dated 2/10/76

A Xerox Copy of a two-page Document entitled

“Lilly-Robinson Phone Conversation” dated 2/13/76

A four-page Document entitled “To: E.J.S. from

D.E.R. Re Telephone Calls about Possible Bribe”

A Xerox Copy of a U. S. Government Memoranda to

Earl J. Silbert dated 1/19/76

A Xerox Copy, two pages, of Data Sheets entitled

“PR 90”

A Xerox Copy of a two-page Handwritten Document

to Donald E. Robinson from Marvin Stouffer dated

8/4/76

A three-page Xerox Copy of Invoices from “Busy

Corner” Chair Shop

A Xerox Copy of a Criminal Docket, U.S. District

Court for the District of Columbia

A Xerox Copy of a two-page Criminal Docket of

Marion E. Toye

A Xerox Copy of six pages of Chase Manhattan

Bankamericard Billing Forms

A Xerox Copy of six pages entitled “Chase Ledger

Sheet Copy”

Nine Volumes of Trial Transcripts dating from

September 21, 1976 to October 1, 1976

A 36-page Xerox Copy of a Transcript of Videotape

Incident 501

17

18

19

20

21

22

23

24

25

26

27

28

29

30

B-35

A 16-page Xerox Copy of a Transcript of Videotape

Incident 634

An Audiotape of a Lilly-Robinson Phone Conversa-

tion dated 2/13/76

An Audiotape of a Lilly-Robinson Phone Conversa-

tion dated 2/10/76

An Audiotape of a Lilly-Robinson Phone Conversa-

tion dated 1/16/76

A Videotape of Incident 634, 2/13/76

A Videotape of Incident 501, 1/29/76

The U. S. Attorney’s Case File on Milton Glover

A Composite Videotape of Loretta Butler Incidents

310, 313, 319, 324 and 374

A Composite Videotape of Loretta Butler Incidents

374, 411 and 473

A Xerox Copy of a January, 1976 Desk Calendar

Ten Pages of Handwritten Notes by Thomas R.

Easton

A Xerox Copy of an Eight-Page FBI Form 302

A Times Union Newspaper Article

A two-page letter from United States Attorney Earl J.

Silbert dated 7/12/78

Number

<> ee: ee: © en © ee --

B-36

APPENDIX

RESPONDENT’S EXHIBITS

Description

A Newspaper Photograph

A Letter from Judge Eugene N. Hamilton dated

7/10/78

A two-page Letter from Lauriston H. Long dated

7/10/78

A three-page Letter from Bradford J. Race dated

11/1/78

A two-page Letter from David G. Larimer dated

8/30/78

A two-page Letter from Kenneth M. Robinson dated

10/27/78

A Letter from Joseph D. Valentino, dated 9/18/78

A two-page Letter from John P. Lomenzo, Jr. dated

11/14/78

COURT’S EXHIBITS

Letter from Daniel A. De Pasquale dated 11/9/78

C-1

APPENDIX C

4 Mo. No. 1126

In the Matter of

Donald E. Robinson, Jr.,

an Attorney &c.

Grievance Committee of the

Seventh Judicial District,

Respondent,

Donald E. Robinson, Jr.,

Appellant.

Motion for leave

to appeal &c. denied.

November 27, 1979

C-2

STATE OF NEW YORK

CourRT OF APPEALS

At a session of the Court, held at Court of Appeals Hall in

the City of Albany on the twentieth day of February A. D. 1980

Present, HON. LAWRENCE H. COooKE, Chief Judge, pre-

siding.

4 Mo. No. 123

In the Matter of

Donald E. Robinson, Jr.,

an Attorney &c.

Grievance Committee of the

Seventh Judicial District,

Respondent,

Donald E. Robinson, Jr.,

Appellant,

A motion having heretofore been made herein upon the

part of the respondent to dismiss the appeal taken by the

appellant in the above cause to this Court and papers having

been submitted thereon and due deliberation having been

thereupon had, it is

ORDERED, that the said motion be and the same hereby is

granted and the appeal dismissed, without costs, upon the

ground that no substantial constitutional question is directly

involved.

JOSEPH W. BELLACOSA

Joseph W. Bellacosa

Clerk of the Court

Appendix D

United States Constitution, Amendment XIV

Section 1. All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No State

shall make or enforce any law which shall abridge the privi-

leges or immunities of citizens of the United States; 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 laws.

Section 2. Representatives shall be apportioned among the

several States according to their respective numbers, counting

the whole number of persons in each State, excluding Indians

not taxed. But when the right to vote at any election for the

choice of electors for President and Vice President of the United

States, Representatives in Congress, the Executive and Judicial

officers of a State, or the members of the Legislature thereof, is

denied to any of the male inhabitants of such State, being

twenty-one years of age, and citizens of the United States, or in

any way abridged, except for participation in rebellion, or other

crime, the basis of representation therein shall be reduced in the

proportion which the number of such male citizens shall bear to

the whole number of male citizens twenty-one years of age in

such State.

Section 3. No person shall be a Senator or Representative

in Congress, or elector of President and Vice President, or hold

any Office, civil or military, under the United States, or under

any State, who, having previously taken an oath, as a member

of Congress, or as an officer of the United States, or as a

member of any State legislature, or as an executive or judicial

Officer of any State, to support the Constitution of the United

States, shall have engaged in insurrection or rebellion against

the same, or given aid or comfort to the enemies thereof. But

Congress may by a vote of two-thirds of each House, remove

such disability.

D-2

Section 4. The validity of the public debt of the United

States, authorized by law, including debts incurred for payment

of pensions and bounties for services in suppressing insurrection

or rebellion, shall not be questioned. But neither the United

States nor any State shall assume or pay any debt or obligation

incurred in aid of insurrection or rebellion against the United

States, or any claim for the loss or emancipation of any slave;

but all such debts, obligations and claims shall be held illegal

and void.

Section 5. The Congress shall have power to enforce, by

appropriate legislation, the provisions of this article.

New York Constitution, Article 6, Section 3

[ Jurisdiction of court of appeals |

a. The jurisdiction of the court of appeals shall be limited

to the review of questions of law except where the judgment is

of death, or where the appellate division, on reversing or

modifying a final or interlocutory judgment in an action or a

final or interlocutory order in a special proceeding, finds new

facts and a final judgment or a final order pursuant thereto is

entered; but the right to appeal shall not depend upon the

amount involved.

b. Appeals to the court of appeals may be taken in the

classes of cases hereafter enumerated in this section;

In criminal cases, directly from a court of original jurisdic-

tion where the judgment is of death, and in other criminal cases

from an appellate division or otherwise as the legislature may

from time to time provide.

In civil cases and proceedings as follows:

(1) As of right, from a judgment or order entered

upon the decision of an appellate division of the supreme

court which finally determines an action or special pro-

ceeding wherein is directly involved the construction of the

constitution of the state or of the United States, or where

D-3

one or more of the justices of the appellate division dissents

from the decision of the court, or where the judgment or

order is one of reversal or modification.

(2) As of right, from a judgment or order of a court of

record of original jurisdiction which finally determines an

action or special proceeding where the only question

involved on the appeal is the validity of a statutory

provision of the state or of the United States under the

constitution of the state or of the United States; and on any

such appeal only the constitutional question shall be

considered and determined by the court.

(3) As of right, from an order of the appellate

division granting a new trial in an action or a new hearing

in a special proceeding where the appellant stipulates that,

upon affirmance, judgment absolute or final order shall be

rendered against him.

(4) From a determination of the appellate division of

the supreme court in any department, other than a judg-

ment or order which finally determines an action or special

proceeding, where the appellate division allows the same

and certifies that one or more questions of law have arisen

which, in its opinion, ought to be reviewed by the court of

appeals, but in such case the appeal shall bring up for

review only the question or questions so certified; and the

court of appeals shall certify to the appellate division its

determination upon such question or questions.

(5) From an order of the appellate division of the

supreme court in any department, in a proceeding in-

stituted by or against one or more public officers or a

board, commission or other body of public officers or a

court or tribunal, other than an order which finally deter-

mines such proceeding, where the court of appeals shall

allow the same upon the ground that, in its opinion, a

question of law is involved which ought to be reviewed by

it, and without regard to the availability of appeal by

stipulation for final order absolute.

D-4

(6) From a judgment or order entered upon the

decision of an appellate division of the supreme court

which finally determines an action or special proceeding

but which is not appealable under paragraph (1) of this

subdivision where the appellate division or the court of

appeals shall certify that in its opinion a question of law is

involved which ought to be reviewed by the court of

appeals. Such an appeal may be allowed upon application

(a) to the appellate division, and in case of refusal, to the

court of appeals, or (b) directly to the court of appeals.

Such an appeal shall be allowed when required in the

interest of substantial justice.

(7) No appeal shall be taken to the court of appeals

from a judgment or order entered upon the decision of an

appellate division of the supreme court in any civil case or

proceeding where the appeal to the appellate division was

from a judgment or order entered in an appeal from

another court, including an appellate or special term of the

supreme court, unless the construction of the constitution of

the state or of the United States is directly involved therein,

or unless the appellate division of the supreme court shall

certify that in its opinion a question of law is involved

which ought to be reviewed by the court of appeals.

(8) The legislature may abolish an appeal to the court

of appeals as of right in any or all of the cases or classes of

cases specified in paragraph (1) of this subdivision where-

in no question involving the construction of the constitution

of the state or of the United States is directly involved,

provided, however, that appeals in any such case or class

of cases shall thereupon be governed by paragraph (6) of

this subdivision.

New York Judiciary Law §90. Admission to and removal from

practice by appellate division; character committees

1. a. Upon the state board of law examiners certifying

that a person has passed the required examination, or that the

examination has been dispensed with, the appellate division of

D-5

the supreme court in the department to which such person shall

have been certified by the state board of law examiners, if it

shall be satisfied that such person possesses the character and

general fitness requisite for an attorney and counsellor-at-law,

shall admit him to practice as such attorney and counsellor-at-

law in all the courts of this state, provided that he has in all

respects complied with the rules of the court of appeals and the

rules of the appellate divisions relating to the admission of

attorneys.

b. Upon the application, pursuant to the rules of the court

of appeals, of any person who has been admitted to practice

law in another state or territory or the District of Columbia of

the United States, or in a foreign country, to be admitted to

practice as an attorney and counsellor-at-law in the courts of

this state without taking the regular bar examination, the

appellate division of the supreme court in the department in

which such person is an actual resident at the time of such

application, if it shall be satisfied that such person possesses the

character and general fitness requisite for an attorney and

counsellor-at-law, shall admit him to practice as such attorney

and counsellor-at-law, in all the courts of this state, provided,

that he has in all respects complied with the rules of the court of

appeals and the rules of the appellate divisions relating to the

admission of attorneys.

c. The members of the committee appointed by the

appellate division in each department to investigate the charac-

ter and fitness of applicants for admission to the bar, shall be

entitled to their necessary traveling, hotel and other expenses,

incurred in the performance of their duties, payable by the state

out of moneys appropriated therefor, upon certificate of the

presiding justice of the appellate division by which such

committee is appointed.

d. The committee on character and fitness appointed by

the appellate division of the supreme court in the first judicial

department and the committee on character and fitness ap-

pointed by the appellate division of the supreme court of the

D-6

second judicial department, may each, with the written consent

of the justices of each of such appellate divisions or a majority

of such justices, acting for their respective appellate divisions,

from time to time, appoint and remove a secretary, stenogra-

phers and assistants, and procure a suitable office for each

committee, properly furnished and equipped and all books,

stationery, blanks, postal cards, expressage and postage stamps

as shall be required for the proper performance of the duties of

each such committee.

e. The salaries of such secretary, stenographers and

assistants shall be fixed for each department by the justices of

the appellate division in each department or a majority of them

in each department.

f. The salaries of such secretary, stenographers and

assistants and the necessary expenses under the terms of this act

in the first judicial department, shall, in the said first judicial

department, be paid by the comptroller of the city of New

York.

g. The salaries of such secretary, stenographers and

assistants and the necessary expenses under the terms of this act

in the second judicial department shall be certified by the

presiding justice of such department to the state comptroller

who shall audit the same. The state department of taxation and

finance shall pay such salaries and expenses and shall apportion

the same among the counties comprising the second judicial

department. Such counties shall reimburse the state for such

compensation. The time and method of such apportionment

and the time and method of such reimbursement shall be as

specified in section seventy-four of this chapter.

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 appellate division of the

supreme court in each department is authorized to censure,

suspend from practice or remove from office any attorney and

counsellor-at-law admitted to practice who is guilty of profes-

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

D-7

demeanor, or any conduct prejudicial to the administration of

justice; and the appellate division of the supreme court is

hereby authorized to revoke such admission for any mis-

representation or suppression of any information in connection

with the application for admission to practice.

It shall be the duty of the appellate division to insert in

each order of suspension or removal hereafter rendered a

provision which shall command the attorney and counsellor-at-

law therafter to desist and refrain from the practice of law in

any form, either as principal or as agent, clerk or employee of

another. In addition it shall forbid the performance of any of

the following acts, to wit:

a. The appearance as an attorney or counsellor-at-law

before any court, judge, justice, board, commission or other

public authority.

b. The giving to another of an opinion as to the law or its

application, or of any advice in relation thereto.

In case of suspension only, the order may limit the

command to the period of time within which such suspension

shall continue, and if justice so requires may further limit the

scope thereof.

If an attorney and counsellor-at-law has been heretofore

removed from office, the appellate division shall upon appli-

cation of any attorney and counsellor-at-law, or of any in-

corporated bar association, and upon such notice to the re-

spondent as may be required, amend the order of removal by

adding thereto as a part thereof, provisions similar to those

required to be inserted in orders hereafter made.

If a certified copy of such order or of such amended order,

be served upon the attorney and counsellor-at-law suspended

or removed from office, a violation thereof may be punished as

a contempt of court.

3. The suspension or removal of an attorney or counsellor-

at-law, by the appellate division of the supreme court, operates

as a suspension or removal in every court of the state.

D-8

4. a. Any person being an attorney and counsellor-at-law

who shall be convicted of a felony as defined in paragraph e of

this subdivision, shall upon such conviction, cease to be an

attorney and counsellor-at-law, or to be competent to practice

law as such.

b. Whenever any attorney and counsellor-at-law shall be

convicted of a felony as defined in paragraph e of this

subdivision, 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.

c. Whenever an attorney shall be convicted of a crime in a

court of record of the United States or of any state, territory or

district, including this state, whether by a plea of guilty or nolo

contendere or from a verdict after trial or otherwise, the

attorney shall file, within thirty days thereafter, with the

appellate division of the supreme court, the record of such

conviction.

The failure of the attorney to so file shall be deemed

professional misconduct provided, however, that the appellate

division may upon application of the attorney, grant an exten-

sion upon good cause shown.

d. For purposes of this subdivision, the term serious crime

shall mean any criminal offense denominated a felony under

the laws of any state, district or territory or of the United States

which does not constitute a felony under the laws of this state,

and any other crime a necessary element of which, as deter-

mined by statutory or common law definition of such crime,

includes interference with the administration of justice, false

swearing, misrepresentation, fraud, willful failure to file income

tax returns, deceit, bribery, extortion, misappropriation, theft,

or an attempt or conspiracy or solicitation of another to commit

a serious crime.

D-9

e. For purposes of this subdivision, the term felony shall

mean any criminal offense classified as a felony under the laws

of this state or any criminal offense committed in any other

State, district, or territory of the United States and classified as a

felony therein which if committed within this state, would

constitute a felony in this state.

f. Any attorney and counsellor-at-law convicted of a

serious crime, as defined in paragraph d of this subdivision,

whether by plea of guilty or nolo contendere or from a verdict

after trial or otherwise, shall be suspended upon the receipt by

the appellate division of the supreme court of the record of such

conviction until a final order is made pursuant to paragraph g

of this subdivision.

Upon good cause shown the appellate division of the

supreme court may, upon application of the attorney or on its

own motion, set aside such suspension when it appears con-

sistent with the maintenance of the integrity and honor of the

profession, the protection of the public and the interest of

justice.

g. Upon a judgment of conviction against an attorney

becoming final the appellate division of the supreme court shall

order the attorney to show cause why a final order of suspen-

sion, censure or removal from office should not be made.

h. If the attorney requests a hearing, the appellate division

of the supreme court shall refer the proceeding to a referee,

justice or judge appointed by the appellate division for hearing,

report and recommendation.

After said hearing, the appellate division may impose such

discipline as it deems proper under the facts and circumstances.

5. a. If such removal or debarment was based upon

conviction for a serious crime or upon a felony conviction as

defined in subdivision four of this section, and such felony

conviction was subsequently reversed or pardoned by the

president of the United States, or governor of this or another

state of the United States, the appellate division shall have

D-10

power to vacate or modify such order or debarment, provided,

however, that if such attorney or counsellor-at-law has been

removed from practice in another jurisdiction, a pardon in said

jurisdiction shall not be a basis for application for re-admission

in this jurisdiction unless he shall have been readmitted in the

jurisdiction where pardoned.

b. If such removal.or debarment was based upon con-

viction for a felony as defined in subdivision four of this section,

the appellate division shall have power to vacate or modify

such order or debarment after a period of seven years provided

that such person has not been convicted of a crime during such

seven-year period.

6. Before an attorney or counsellor-at-law is suspended 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 presiding 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. In all cases where

the charges are served in any manner other than personally,

and the attorney and counsellor-at-law so served does not

appear, an application may be made by such attorney or in his

behalf to the presiding justice of the appellate division of the

supreme court to whom the charges were presented at any time

within one year after the rendition of the judgment, or final

order of suspension or removal, and upon good cause shown

and upon such terms as may be deemed just by such presiding

justice, such attorney and counsellor-at-law must be allowed to

defend himself against such charges.

The justices of the appellate division in any judicial

department, or a majority of them, may make an order

directing the expenses of any disciplinary proceedings, and the

necessary costs and disbursements of the petitioner in prose-

D-11

cuting such charges, including the expense of any preliminary

investigation in relation to professional conduct of an attorney

and counsellor-at-law, to be paid out of funds appropriated to

the office of court administration for that purpose.

7. In addition to the duties prescribed by section seven

hundred of the county law, it shall be the duty of any district

attorney within a department, when so designated by the

justices of the appellate division of the supreme court in such

department, or a majority of them, to prosecute all proceedings

for the removal or suspension of attorneys and counsellors-at-

law or the said justices, or a majority of them may appoint any

attorney and counsellor-at-law to conduct a preliminary in-

vestigation and to prosecute any disciplinary proceedings and,

during or upon the termination of the investigation or proceed-

ings, may fix the compensation to be paid to such attorney and

counsellor-at-law for the services rendered which compensation

shall be a charge against the county specified in his certificate

and shall be paid thereon.

8. Any petitioner or respondent in a disciplinary proceed-

ing against an attorney or counsellor-at-law under this section,

including a bar association or any other corporation or associ-

ation, shall have the right to appeal to the court of appeals from

a final order of any appellate division in such proceedings upon

questions of law involved therein, subject to the limitations

prescribed by article six, section three, of the constitution of this

state.

9. No objection shall be taken to the appointment of any

member of the bar to act as referee or judge in a disciplinary

proceeding under this section on the ground that he is a

member of a bar association or other corporation or association

which is the petitioner therein.

10. Any statute or rule to the contrary notwithstanding, all

papers, records and documents upon the application or exam-

ination of any person for admission as an attorney and

counselor-at-law and upon any complaint, inquiry, in-

vestigation or proceeding relating to the conduct or discipline of

D-12

an attorney or attorneys, shall be sealed and be deemed private

and confidential. However, upon good cause being shown, the

justices of the appellate division having jurisdiction are em-

powered, in their discretion, by written order, to permit to be

divulged all or any part of such papers, records and documents.

In the discretion of the presiding or acting presiding justice of

said appellate division, such order may be made either without

notice to the persons or attorneys to be affected thereby or upon

such notice to them as he may direct. In furtherance of the

purpose of this subdivision, said justices are also empowered, in

their discretion, from time to time to make such rules as they

may deem necessary. Without regard to the foregoing, in the

event that charges are sustained by the justices of the appellate

division having jurisdiction in any complaint, investigation or

proceeding relating to the conduct or discipline of any attorney,

the records and documents in rc‘ation thereto shall be deemed

public records.