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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 830

## Text

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 atto

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2409%3A1. Public record. Not legal advice.