Opposition Brief — Holtzman v. Grievance Committee for the Tenth Judicial District

No. 91-401 OCT ¢

depreme Court, US.

Pi

(c) FILED

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THE GLERG

In the

Supreme Court of the Anited States

October Term, 1991

ELIZABETH HOLTZMAN,

Petitioner,

vs.

GRIEVANCE COMMITTEE FOR THE

TENTH JUDICIAL DISTRICT,

Respondent.

On Petition for a Writ of Certiorari to the

Court of Appeals of the State of New York

BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

FRANK A. FINNERTY, JR.*

Chief Counsel

Grievance Committee for the

Tenth Judicial District

900 Ellison Avenue, Suite 304

Westbury, New York 11590

(516) 832-8585

Attorney for Respondent

*Counsel of record

On the Brief:

GRACE D. MORAN

CHRIS G. McDONOUGH

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TABLE OF AUTHORITIES

Page

Baker v. Monroe Cuunty Bar Ass'n,

34 A.D.2d 229, 311 N.Y.S.2d

70 (4th Dep't 1970), aff'd, 28

N.Y.2d 977, 272 N.E.2d 337,

S25 Becleoere Gals

cert. denied, 404 U.S. 915

Gi 22 } REA Ca ee mre 19,21

eee soe on Legal Ethics v. Douglas,

370 S.E.2d 325, (W.Va. 1988),

cert. Se Sr 110 S. Ct. 406

Bh Deere rw er error re cae

Committee or egal Ethics v. Farber,

1991 W.Va. EXIS 7 june 27,

CS aL a cia odin edo awe eee ee ees tee

Ex Parte Secombe, ¢ cme |S CEBSC Be ccta

Gentile v. State Bar of Nevada,

iL De Ube CIE CAeel Petcs eee a Passim

Goldfarb v. Virginia State Bar,

SEU Usse Fre Chel Skee keeeeeeesece ss 13

In re Charges of Professional

Misconduct Against N.P.,

361 N.W.2d 586 (Minn.),

appeal dismissed, 474 U.S.

O76 (19SS J. cccccccccccceescseseseeses

In re Donohoe, 90 Wash.2d 173,

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On the day of publication,

December S% 1987, Chief Assistant

District Attorney William Donnino

learned that a "press alert", an

advisory to the press that a major

piece of news would be forthcoming,

had been issued. (Tr. 77). This

information upset Donnino who had

previously urged Petitioner not to put

words in the complaining witness'

mouth without’ first speaking with

her. (Te. 53). On December 1,

Petitioner telephoned her office from

her car phone and spoke with Newman

who told her that she, Donnino and

Barbara Underwood, Chief of Appeals

and Counsel to the District Attorney,

all opposed releasing the letter

without the trial transcript. (Tr.

344-45). When Petitioner returned to

the office she met with Donnino and

Underwood. After telling Petitioner

that it would be legal and ethical to

publish the letter (Tr. 68), Underwood

nonetheless insisted that the

Petitioner should wait for the

minutes. (Tr. 513).

Underwood "thought the

transcript might well show a

justification for the demonstration

and make it either inappropriate to

make the complaint at all or not make

it in the form it was being made."

Cif. --- Shas Underwood described a

series of hypotheticals that "might

Mitigate or exculpate the Judge's

conduct in this particular case and

therefore constitute reasons for not

publishing the complaint." (Tr. 71).

Petitioner, despite the fact

that she had never tried a criminal

case (Tr. 1914), responded that no

such justification could exist. (Tr.

513-16).

When the Roe minutes were

obtained, they unequivocally refuted

Petitioner's allegations by, inter

alia, establishing that it was the

defense counsel who sought a

demonstration and not the Judge. In

addition, the transcript revealed that

rather than the judge compelling any

demonstration, he said "Hold oe

immediately following counsel's

request to the complaining witness.

(Roe Tr. 62-65).

The Appellate Division of the

Supreme Court of the State of New

York, Second Department, found that

Petitioner's accusations were false.

(Pet. App. B). The New York State

Court of Appeals held that finding to

be supported by the _ record. In re

Holtzman, 78 N.Y.2d 184, 190 (1991).

The New York State Court of

Appeals, in a 6-0 decision, rejected

Petitioner's argument that her conduct

was not proscribed by the Code of

Professional Responsibility, and held

that her public dissemination of a

specific accusation of improper

judicial conduct under the circun-

Stances described could be held to

reflect adversely on her fitness to

practice law. Id. at 191.

Reasons to Deny the Writ

Petitioner has been issued a

private letter of reprimand for irre-

sponsible conduct, a component of which

involved speech. The decision below

concentrated on Petitioner's reckless,

Single-minded rush to publicize her

fact-specific unsupported accusations,

without waiting for readily available

evidence to validate or rebut her

serious charges of judicial misconduct.

Petitioner, despite her

efforts to recast her conduct, was not

disciplined for expressing mere

criticism or opinion about a judge or

the judicial system, and nothing in

the opinion below can be interpreted

as an attempt to insulate judges from

such protected expressions.

This Court, in Gentile Vv.

State Bar of Nevada, lll S. Ct. 2720

(1991), recognized that the protection

to be afforded attorney speech must be

determined by taking into account the

state interest in regulating a

specialized profession, and the

interest or interests served by

allowing such particular regulation of

attorney speech. Id. at 2744-45.

Petitioner's argument for protection

equal to that enjoyed by press and

public in defamation cases fails to

recognize that different societal

interests are involved, In re Terry,

$94 N.E.2Z¢d 94, 95 (Ind. 1979), cert.

denied, 444 U.S. 1077 (1980); In_re

Graham, 453 N.W.2d 313, 322 (Minn.)

cert. denied, lll S. Ct. 67 (1990);

In re Westfall, 808 S.W.2d 829, 836-37

(Mc. 1991), petition for cert. filed,

60 U.S.L.W. (U.S. Sept. 9,

1991) (No. 9l- ), and that the

State has a compelling interest in

Maintaining the public's confidence in

10

its system of justice, as well as in

assuring that attorneys act responsi-

bly. The adverse impact of irrespon-

Sible, false accusations on _ public

confidence in the judicial system,

and what Petitioner's conduct as

demonstrated in the instant’ matter

reveals about her fitness to practice

law, justifies the discipline imposed

on her.

Petitioner's argument that

DR 1-102(A)(6) is vague or overbroad

ignores the fact that codes of

professional conduct need not be drawn

with the same specificity required for

Statutes applicable to non-lawyers.

In comparing her conduct with that of

Gentile, Petitioner disregards’ that

while Gentile was misled by an

illusory safe harbor, Gentile, 1ll S.

ll

Ct. at Zi ak, Petitioner willfully

l1gnored advice that releasing her

accusations without the minutes would

be improper.

It is Submitted that this

case would have had the same outcome

in any of the eighteen other states

whose decisions Petitioner cites, and

that this Court's decision in Gentile

creates no conflict with the decision

below.

ARGUMENT

POINT I

NEW YORK CORRECTLY APPLIED AN

OBJECTIVE STANDARD IN DISCIPLINING

THE PETITIONER FOR CONDUCT WHICH

VIOLATED EVERY STANDARD EXCEPT

"CONSTITUTIONAL MALICE"

As the Court of Appeals made

clear, Petitioner was not reprimanded

for expressions of generalized

criticism or opinion about a judge or

the courts, but rather for releasing

to the media a false accusation of

specific wrongdoing aimed at a named

judge, without any support other than

the intraoffice memoranda of a newly

admitted trial assistant, and without

waiting for the already ordered

minutes which would have shown her

allegations to be false. Holtzman, 78

ie gee. ay |) see © 2 ies No decision by the

high court of any state has been found

which Suggests that the conduct

evidenced here is insufficient as a

basis for disciplining an attorney,

nor does any decision of this Court

hold that speech by an attorney, under

the circumstances presented in this

13

matter, enjoys constitutional protec-

tion.

Here, New York has protected

a compelling State interest in

regulating tne legal profession; a

right recognized by this Court in

Goldfarb v. Virginia State Bar, 421

0.8. 7735. 02873)53

We recognize that the States

have a compelling interest in

the practice of professions

within their boundaries, and

that as part of their power

to protect the public health,

safety, and other valid inter-

ests they have broad power to

establish standards for

licensing practitioners and

regulating the practice of

professions....The interest

of the States in regulating

lawyers is especially great

Since lawyers are essential

to the primary governmental

function of administering

justice.

Id. at 792 (citations omitted); see

also, Westfall, 808 S.W.2d at 836;

Graham, 453 N.W.2d at 322 ("This

court certifies attorneys for practice

to protect the public and the

administration of justice").

Integral thereto is the

State's interest in protecting the

legal system from unwarranted attacks

by attorneys upon the integrity of its

most visual component, its judges.

The New York State Court of Appeals

plainly recognized this compelling

State interest of maintaining’ the

integrity of its courts and the public

confidence therein. Holtzman, 78

N.Y.2d at 192-93. While this interest

is not as immediate or obvious as the

interest recognized in Gentile, lll S.

Ct. at 2745 (state interest in

preserving the fundamental right to a

fair trial), it is no less real and

15

it is deserving of recognition.

In New York, the Code of

Professional Responsibility encourages

attorneys to engage in justified

criticism directed toward improvement

of the legal system. Code of Pro-

fessiona] Responsibility EC 8-6

(Appendix to Jud. Law McKinney 1981 &

Supp. 1991). However, for a state to

permit its system of justice to be

unnecessarily and irresponsibly

undermined by false accusations of

judicial misconduct is to endanger the

authority of the courts and to invite

instances of self-help on the part of

the public. In his dissent in Matter

of Fuchsberg, 426 N.Y.S.2d 639 (Ct. on

the Jud. 1978), then Justice Simons

(presently a member of the Court of

Appeals), succinctly Stated tne

16

interest involved here:

»«.-the impartiality of

its judges and the

integrity of the court's

decisions. The public

interest requires’ that

neither be compromised

in appearance or in fact

for the public must

respect the courts and

the Judges of the court

must deserve the respect

of the public. That is

the bedrock upon which

our system of law is

built for the courts

have little else to

enforce compliance with

their judgments other

than the acceptability

of them borne of public

respect. The public

need not always be

convinced of the

correctness of the

court's decisions but

they must always believe

in the integrity of the

decision-making process.

Id. at 666-67.

Moreover, in protecting the

aforementioned interest, the Court of

17

Appeals acted in as narrow a fashion

as possible by measuring Petitioner's

conduct against the standard of a

reasonable attorney. Holtzman, 78

N.Y.2d at 192-93.

x x x

Although the state decisions

cited by Petitioner have utilized

differing analyses, none has applied

to attorney misconduct proceedings the

Subjective standard enunciated in St.

Amant Vs Thompson, 390 U.S. 727

(1968), and only two states appear to

have applied defamation - standards.

See Ramirez v. State Bar, 28 Cal.3d

402, 411, 619 P.2d 399, 404, 169 Cal.

Rptr. 206, 211 (1980); Committee on

Legal Ethics v. Douglas, 270 S.E.2d

325, 332. (8.Ve.: 19686), cert... denied,

Division v. Erdmann, 33 N.Y.2d 559,

705 N.E«Z@ €26, 347 No¥-Se2 441

(1973), even instances of vulgar

disrespect by lawyers toward the

judiciary, however ridiculous and

patently untrue, are not subject to

discipline. Id. at 559, 301 N.E.2d at

4Z0, 347 N.Y.S.2d at 441,

Petitioner's publicized specific

accusations were outside the scope of

constitutionally protected criticism

and opinion and adversely impacted on

the compelling State interests of

maintaining the integrity of its

courts as well as protecting the

public by demanding responsible

conduct by attorneys. The court

recognized that the harm here affected

a different societal interest than

that addressed in defamation actions

24

legal precision, every offense for

which an attorney can be removed". EX

parte Secombe, 60 U.S. 9, 14 (1856).

Aside from being written by lawyers

for lawyers, "more specific guidance

is provided by caselaw, applicable

court rules, and the lore of the

profession”, in re Snyder, 872 U.S,

634, 645 (1985).

The New York State Court of

Appeals recently held in Niesig v

Team 1, 76 N.Y¥.2d 363, S558 WN.E.2

1030, 559 N.Y.S.2d 493 (1990), that:

[t]he disciplinary rules

nave a different prov-

enance and purpose...The

Code of Professional

Responsibility is essen-

tially the legal profes-

Sion's document of self

governance, embodying

principles of ethical

conduct for attorneys as

well as rules for

professional discipline.

5

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Oo

sufficient to give appellee notice.

Id.

Petitioner claims that she

was "in the dark as to whether" her

conduct was proscribed (Pet. at 27);

yet the record establishes that her

Senior staff umanimously urged her not

to release the letter without checking

the expedited transcript. Thus, it

WaS apparent that the attorneys upon

whom Petitioner relied knew the

planned release to be improper conduct

for an attorney.

In Gentile v. State Bar of

Nevada, iil $...-Gt.-—27 20: CiIGst) yy. this

Court found Nevada Disciplinary Rule

177 vague due to the inclusion of an

illusory safe harbor provision

28

in an attempt to convince this Court

that the Court of Appeals encroached

upon her right of speech. However,

the court pointedly indicated that

Petitioner's actions, for which she

earned her private reprimand were "not

general criticism but rather release

to the media of a false allegation of

specific wrongdoing, made without any

Support other than the _ interoffice

memoranda of a newly admitted trial

assistant, aimed at a named judge".

Holtzman, 78 N.Y.2d at 191.

PB

Clearly Petitioner's conduct

is a far cry from general criticism or

Opinion of the judiciary, as she would

have this Court believe. Thus, as the

Court of Appeals applied DR 1-102

(A)(6) to Petitioner's conduct in

30

The petition for a writ of

certiorari should be denied.

Respectfully submitted,

FRANK A. FINNERTY, JR.

Attorney for Respondent

New York State Grievance

Committee for the Tenth

Judicial District

900 Ellison Avenue

Suite 304

Westbury, New York 11590

October 7, 1991

On the Brief

GRACE D. MORAN

CHRIS G. McDONOUGH