Petition — In re Schulman

82-1450

No.

In the Supreme Court of the United States

October Term, 1982

IN RE: MILTON PHILIP SCHULMAN,

Petitioner.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

JACK SCHULMAN, Counsel of Record

SCHULMAN & SCHULMAN,

A Professional Corporation

748 Standard Building

1370 Ontario Street

Cleveland, Ohio 44113-1727

(216) 621-0580

Attorney for Petitioner

THE GATES LEGAL PUBLISHING CO., CLEVELAND, OHIO-- TEL, (216) 621-5647

QUESTION PRESENTED FOR REVIEW

In a proceeding to discipline an attorney, may dis-

ciplinary action be taken against the attorney, even though

he has been exonerated of the only charge levied against

him?

pees

TABLE OF CONTENTS

Question Presented for Review ...........cccccccccccesescesseeeeeees I

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Appendix:

Opinion and Order of the United States Court of

Appeals for the Sixth Circuit (November 30,

ES Al

Memorandum Opinion and Order of the United

States District Court (February 12, 1982) ........ A33

TABLE OF AUTHORITIES

Cases

Ex parte Garland, 71 U.S. (4 Wall.) 333 (1866) ............ 5

6 | ne 5

In re Ruffalo, 390 U.S. 544 (1967) .....ccccccccccccccceseeeseeeeeeeee 5

Willner v. Committee on Character and Fitness, 373

U.S. 106 (1963) ........... 5

Constitutional Provisions

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No.

In the Supreme Court of the United States

October Term, 1982

IN RE: MILTON PHILIP SCHULMAN,

Petitioner.

PETITION FOR WRIT OF CERTIORARI

To the United States Court of Appeals

For the Sixth Circuit

Petitioner prays that a writ of certiorari issue to re-

view the judgment of the United States Court of Appeals

for the Sixth Circuit entered in the above-entitled case on

November 30, 1982.

CITATION TO OPINIONS BELOW

The opinion of the United States District Court for the

Northern District of Ohio, Eastern Division, is unreported

as of this date. The opinion is set forth in the Appendix

at page A33.

The opinion of the United States Court of Appeals

for the Sixth Circuit is unreported as of this date. The

opinion is set forth in the Appendix at page Al.

JURISDICTION

The jurisdiction of this Court is invoked under Title

28 U.S.C., Section 1254.

CONSTITUTION INVOLVED

Amendment V

No person shall be held to answer for a capital or

otherwise infamous crime, unless on a presentment or

indictment of a grand jury, except in cases arising in the

land or naval forces, or in the militia, when in actual ser-

vice in time of war or public danger; nor shall any person

be subject for the same offense to be twice put in jeopardy

of life or limb; nor shall be compelled in any criminal case

to be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor shall

private property be taken for public use without just

compensation.

STATEMENT OF FACTS

This is a disciplinary proceeding initiated by the Hon-

orable Robert B. Krupansky, who was a judge of the United

States District Court for the Northern District of Ohio at

the time this action arose.’ Milton P. Schulman (“Schul-

man”’), the Petitioner herein, is an attorney and a member

of the bar of the United States District Court for the

Northern District of Ohio.

The allegations against Schulman arose out of pre-

trial proceedings and the trial in Ford v. Kinzel, Civil No.

C78-769 (N.D. Ohio), a civil rights housing discrimination

suit. Schulman represented the defendants in Ford v.

Kinzel.

1, Judge Krupansky is now a member of the U.S. Court of

Appeals for the Sixth Circuit. He has been represented through-

out this proceeding by Solomon Oliver, Assistant U.S. Attorney,

1404 East Ninth Street, Suite 500, Cleveland, Ohio 44114.

3

It was charged that Schulman “knowingly and will-

fully pursued a course of conduct both prior to and through-

out the trial of [Ford v. Kinzel] designed and calculated to

disrupt the orderly resolution of this litigation. . ” Foi-

lowing the charge, twenty specifications of allegedly dis-

ruptive conduct were presented, not as acts of misconduct

in and of themselves, but rather as specifications of the

manner in which the alleged plan of disruption was im-

plemented.

On December 20, 1978, Judge Krupansky conducted a

show cause hearing to consider the allegedly unethical trial

conduct by Schulman. Following this hearing, Judge

Krupansky ordered that Schulman be stricken from the

roll of attorneys authorized to practice before the United

States Court for the Northern District of Ohio. He also im-

posed extensive conditions for Schulman’s readmission.

Schulman appealed Judge Krupansky’s decision to the

United States Court of Appeals for the Sixth Circuit. That

court reversed the decision and remanded the case for a

new hearing before a different judge, who would have no

persona] involvement in the controversy. On remand, the

case was assigned to the Honorable Leroy J. Contie, Jr.’

Judge Contie conducted a hearing and elicited testimony

from several witnesses. On February 12, 1981, Judge

Contie issued an order permitting Schulman’s name to re-

main on the roll of attorneys allowed to practice in the

United States District Court for the Northern District of

Ohio only if he met certain conditions and complied with

certain restrictions. Schulman appealed that judgment to

the U.S. Court of Appeals for the Sixth Circuit.

2. Judge Contie is now a member of the United States

Court of Appeals for the Sixth Circuit.

4

The Court of Appeals rendered its decision on Novem-

ber 30, 1982. The majority opinion (of Judges Keith and

Jones) exonerated Schulman of the charge against him:

“We do not think that Schulman knowingly and will-

fully pursued a course of conduct designed and cal-

culated to disrupt the orderly resolution of the litiga-

tion in Ford v. Kinzel.” (Appendix page A3).

The majority, however, affirmed Judge Contie’s dis-

ciplinary order, offering only the following explanation

for that decision:

“Nevertheless we agree that Schulman’s conduct went

far beyond an honest good faith effort to present his

client’s case.” (Appendix page A3).

The remaining member of the panel, the Honorable

Walter E. Hoffman (sitting by designation) filed a lengthy

and vigorous dissent. Insofar as is relevant to this Petition

for a Writ of Certiorari, Judge Hoffman argued that the

majority could not discipline Schulman for acts not charged

in the specifications, nor could it discipline Schulman at

all, since it had exonerated him from the only charge

against him.

From the decision of the United States Court of

Appeals for the Sixth Circuit, Schulman seeks certiorari

from this Court.

REASONS FOR GRANTING THE WRIT

Disciplinary proceedings “are adversary proceedings

of a quasi-criminal nature.” In re Ruffalo, 390 U.S. 544,

551 (1967). Although designed to protect the public they

are also “a punishment or penalty imposed on the lawyer.”

Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1866). There-

fore, the attorney is “accordingly entitled to procedural

due process, which includes fair notice of the charge”

in such specifics and at such a time as to permit mean-

ingful preparation of a response. In re Ruffalo, 390 U.S.

at 350; Cf. In re Gault, 387 U.S. 1, 33 (1966). Indeed,

any action seeking to discipline a lawyer “. . . must proceed

according to the most exacting demands of due process

of law.” Willner v. Committee on Character and Fitness,

373 U.S. at 106 (1963). See also: In re Ruffalo, supra.

The charge states that Schulman “knowingly and will-

fully pursued a course of conduct... designed and calcu-

lated to disrupt the orderly resolution of this litigation.”

The majority, quoting the charge, absolved the Petitioner

by stating: ‘We do not think Schulman knowingly and

willfully pursued a course of conduct designed and calcu-

lated to disrupt the orderly resolution of the litigation

in Ford v. Kinzel,” but then the majority affirmed, saying

“(njevertheless, we agree that petitioner’s conduct went

far beyond an honest good faith effort to present his client’s

case.”

In comparing the language of the charge with the

language of the majority’s order, it is clear that the ma-

jority dismissed the charge entirely, and, in effect, re-

charged Petitioner with “bad faith.”

It is not possible to ascertain from the majority opin-

ion what conduct of the Petitioner constituted “bad faith.”

Nor was Petitioner ever called upon to defend against

a charge of “bad faith”. Indeed, the term “bad faith”

is wholly foreign to the Canons of Ethics of attorneys.

Thus, the Petitioner, having been exonerated of the

only charge against him, is being punished upon a charge

mever made against him, a charge which is incompre-

hensible, a charge which does not allege a violation of

any ethical canon.

If the decision of the United States Court of Appeals

for the Sixth Circuit is permitted to remain undisturbed

by this Court, it stands for the following propositions:

1. An attorney may be disciplined on the basis

of a charge never made against him and which he

was never called upon to defend.

2. An attorney may be punished in a disciplinary

proceeding even though he has been exonerated of

the only charge against him.

3. Where an attorney has successfully defended

against a disciplinary proceeding by establishing his

innocence of the charge against him, he may never-

theless be subjected to discipline based on other

charges which were never made against him.

4. An attorney may be disciplined solely for his

“bad faith” during the trial of litigation, without any

further articulation of the precise conduct which is

alleged to constitute “bad faith”.

5. An attorney may be disciplined for conduct

which does not violate any ethical canon, if a court

determines that he has acted in “bad faith”.

The simple recitation of the grounds of the decision

which Petitioner seeks review is, we believe, sufficient

to establish the importance of this Court’s intervention

in this proceeding.

CONCLUSION

For the foregoing reasons, we pray the Court to issue

a Writ of Certiorari to the United States Court of Ap-

peals for the Sixth Circuit and to review and decide this

case,

RELIEF ULTIMATELY SOUGHT

Petitioner believes that this Court should rule that

the Petitioner has been exonerated from the only charge

made against him and that the decisions of the Court

of Appeals and the District Court in this case must, there-

fore, be reversed, with instructions to dismiss the dis-

ciplinary proceeding.

Respectfully submitted,

Jack SCHULMAN, Counsel of Record

SCHULMAN & SCHULMAN,

A Professional Corporation

748 Standard Building

1370 Ontario Street

Cleveland, Ohio 44113-1727

(216) 621-0580

Attorney for Petitioner

Al

APPENDIX

OPINION AND ORDER OF THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

(Filed November 30, 1982)

No. 81-3158

UNITED STATES COURT OF APPEALS

FoR THE SIXTH CIRCUIT

IN THE MATTER OF: DISBARMENT OF MILTON

PHILIP SCHULMAN,

Respondent-Appellant.

BEFORE: KettrH and Jones, Circuit Judges and

HOFFMAN’.

ORDER

This is a disciplinary proceeding initiated by the

Honorable Robert B. Krupansky, who was a judge of the

United States District Court for the Northern District of

Ohio at the time this action arose. Judge Krupansky

issued an order temporarily suspending Milton P. Schulman

(“Schulman”), the respondent-appellant, from the prac-

tice of law in the United States District Court for the

Northern District of Ohio for at least two years. The

allegations against Schulman arose out of pre-trial pro-

ceedings and the trial in Ford v. Kinzel, Civil No. C. 78-769

(N.D. Ohio), a civil rights housing discrimination suit.

Schulman represented the defendants in Ford v. Kinzel.

*Hon. Walter E. Hoffman, Senior District Judge, Eastern

District of Virginia, sitting by designation.

A2

Ford v. Kinzel was tried before a jury. On December

20, 1978, Judge Krupansky conducted a show cause hear-

ing to consider 20 acts of allegedly unethical trial conduct

by Schulman. Following this hearing, Judge Krupansky

ordered that Schulman be stricken from the roll of at-

torneys authorized to practice before the United States

District Court for the Northern District of Ohio. He also

imposed extensive conditions for Schulman’s readmission.

Schulman appealed Judge Krupansky’s decision to this

Court. This Court reversed that decision and remanded

the case for a new hearing before a different judge. On

remand, the case was assigned to the Honorable Leroy J.

Contie, Jr. Judge Contie conducted a suspension hearing

and elicited testimony from several witnesses. He also

examined the transcript of the trial in Ford v. Kinzel.

On February 12, 1981, Judge Contie issued an order per-

mitting Schulman’s name to remain on the roll of at-

torneys allowed to practice in the United States District

Court for the Northern District of Ohio only if he met cer-

tain conditions and complied with certain restrictions.

Schulman perfected this appeal.

On appeal, Schulman argues that Rule 2.09 of the

Local Civil Rules for the Northern District of Ohio is

unconstitutionally vague and does not comport with the

minimum requirements of due process. We disagree.

Local Civil Rule 2.09 governs the disciplining of attorneys

in the United States District Court for the Northern Dis-

trict of Ohio. Rule 2.09 provides in pertinent part:

Any member of the Bar of this Court may, for

good cause shown and after having been given an

opportunity to be heard, be disbarred, suspended from

practice for a definite time, reprimanded, or subjected

to such other discipline as the Court may deem proper.

A3

Judge Contie held that Rule 2.09 did not violate due proc-

ess. We agree.

Schulman also argues that the evidence did not war-

rant the restrictions and conditions placed upon his ability

to remain a member of the bar of the United States District

Court for the Northern District of Ohio. We disagree. We

do not think that Schulman knowingly and willfully pur-

sued a course of conduct designed and calculated to disrupt

the orderly resolution of the litigation in Ford v. Kinzel.

Nevertheless, we agree that Schulman’s conduct went far

beyond an honest good faith effort to present his client’s

case. In re McConnell, 370 U.S. 230 (1962).

Accordingly, we affirm Judge Contie’s order placing

restrictions and conditions upon Schulman’s ability to re-

main a member of the bar of the Northern District of

Ohio with one minor modification. Judge Contie held that

Schulman could not appear without co-counsel in any mat-

ter before the United States District Court for the North-

ern District of Ohio. This restriction was based in large

part upon Schulman’s hearing impediment. A corrective

device, however, may correct Schulman’s problem. To

the extent that Schulman can prove that a hearing device

will correct his hearing impediment, we vacate that part

of Judge Contie’s order which requires the appearance

of co-counsel.

IT IS SO ORDERED.

Entered by Order of the Court

/s/ JoHN P, HEHMAN

Clerk

A4

HorrMan, District Judge, concurring in part and dissent-

ing in part.

In this disciplinary action the United States District

Court for the Northern District of Ohio, through the United

States Attorney for the Northern District of Ohio, has

charged that petitioner “knowingly and willfully pursued

a course of conduct both prior to and throughout the

trial of [Ford v. Kinzel] designed and calculated to disrupt

the orderly resolution of this litigation. . .” Following the

charge, twenty specifications of allegedly disruptive con-

duct are presented not as acts of misconduct in and of

themselves, but rather as specifications of the manner in

which the alleged plan of disruption was implemented.’

Pursuant to this charge and on remand from this

Court,? Judge Contie, after concluding that the District

Court for the Northern District of Ohio, under Local Civil

Rule 2.09, had the power to regulate members of the legal

profession admitted to practice before it and that peti-

tioner’s right to substantive and procedural due process

had not been contravened, found that the petitioner

1. Judge Contie notes the following in his District Court

opinion: “Twenty specific acis of misconduct have been noticed

in support of the United States Attorney’s general charge that

respondent intentionally pursued a course of conduct designed

and calculated to disrupt the orderly resoc’ution of the cause

of action commenced in Ford v. Kinzel.” ‘a The Matter of:

Milton Philip Schulman, No, 79-1117A (N.D. of Ohio, Feb. 12,

1981).

2. Initially, the trial judge in Ford v. Kinzel charged Schul-

man of misconduct, found him guilty and had Schulman’s name

stricken from the roll of attorneys authorized to practice before

the United States District Court for the Northern District of

Ohio. On appeal, this Court vacated the order of the trial judge

and remanded the case to the District Court to be heard by a

different judge giving two reasons for its conclusion. First,

there was no apparent urgency requiring the chow cause hear-

ing to be conducted upon the short notice given petitioner.

Second, the Court concluded that the matter should have been

referred to another judge because of the “marked personal feel-

ings on both sides.”

A5

intentionally pursued the following patterns of mis-

conduct throughout the Ford trial, which were de-

signed and calculated to disrupt the orderly resolution

of the case: (1) behavior demeaning to witnesses and

prejudicial to the jury, (2) disrespectful remarks to

the judge and refusal to comply with proper court-

room procedures and orders, and (3) delay of the

trial proceedings. Based upon the specific acts of

misconduct .. . the Court hereby finds that respon-

dent violated Disciplinary Rule 7-106(C) of the ABA

Code of Professional Responsibility. (Emphasis

added )

From this order petitioner appeals on two grounds. First,

that Rule 2.09 of the Local Civil Rules for the Northern

3. Disciplinary Rule 7-106(C) which Judge Contie pre-

scribes as “the minimum standard of professional conduct for

courtroom appearances” follows:

In appearing in his professional capacity before a tribunal,

a lawyer shall not:

(1) State or allude to any matter that he has no reasonable

basis to believe is relevant to the case or that will not

be supported by admissible evidence.

(2) Ask any question that he has no reasonable basis to

believe is relevant to the case and that is intended to

degrade a witness or other person.

(4) Assert his personal opinion as to the justness of a cause,

as to the credibility, of a witness, as to the culpability of

a civil litigant, or as to the guilt or innocence of an ac-

cused; but he may argue, on his analysis of the evidence,

for any position or conclusion with respect to the mat-

ters stated herein.

(5) Fail to comply with known local customs of courtesy

or practice of the bar or a particular tribunal without

giving to opposing counsel timely notice of his intent

not to comply.

(6) Engage in undignified or discourteous conduct which is

degrading to a tribunal.

(7) Intentionally or habitually violate any established rule

of procedure or of evidence.

A6

District of Ohio is unconstitutionally vague and does not

comport with the subsi. ntive component of the Due

Process Clause. Second, petitioner argues the evidence

presented does not establish by clear and convincing evi-

dence that he engaged in unethical conduct motivated by

fraud, deceit, or dishonesty.

In response to petitioner’s first contention regarding

the constitutionality of Rule 2.09, the majority affirms with

no explanation. In response to his second contention the

majority simply states:

We do not think that Schulman knowingly and will-

fully pursued a course of conduct designed and cal-

culated to disrupt the orderly resolution of the litiga-

tion in Ford v. Kinzel. Nevertheless, we agree that

Schulman’s conduct went far beyond an honest good

faith effort to present his client’s case. In re McCon-

nell, 370 U.S. 230 (1962).

I

In regard to the first issue, I agree with the majority

that Local Rule 2.09, as adopted by the majority of the

district judges in the Northern District of Ohio, is not un-

constitutionally vague where it refers to disbarment, sus-

pension from practice for a definite time, a reprimand, or

subjection to such other discipline as the Court may deem

proper “for good cause shown”. The American Bar Asso-

ciation Code of Professional Responsibility is the recognized

standard of ethics of the profession and respondent appar-

ently took an oath to this effect when he was admitted to the

bar of the District Court. It would be impossible to draft

local rules specifying every particular act or omission of

an attorney relating to disciplinary actions.

I also agree with the District Court when it states

that the federal court has inherent authority to admit at-

AT

torneys to practice before it and thus has the power to

bring disciplinary actions against those attorneys who are

guilty of unethical conduct. Ex parte Wall, 107 U.S. (17

Otto.) 265, 273 (1882); Ex parte Robinson, 86 U.S. (19

Wall.) 505, 512 (1873); In re Echeles, 430 F.2d 347, 349 (7th

Cir. 1970). However, I feel that if an attorney is not as

good as he should be then the more appropriate action is to

report the attorney’s conduct to the Bar Groups so that they

can make the determination of what disciplinary action is

appropriate. After all, although a disbarment or other

disciplinary action in the federal court is not binding on

the courts of the State of Ohio, Theard v. United States,

354 U.S. 278 (1957), it can be highly persuasive. By re-

porting the matter to the Bar Groups for screening we

provide a more neutral approach so as to prevent any po-

tential element of prejudice or vindictiveness.

II

In regard to the second issue, I have further difficulty

with the majority’s response. Specifically, I question the

majority’s authority, procedurally, to absolve the peti-

tioner of the charge but nevertheless find him guilty based

on the determination that his conduct “went far beyond an

honest good faith effort.” I also disagree with the major-

ity’s conclusion that petitioner’s conduct was in fact in bad

faith or to use the majority’s language, ‘“‘went far beyond

an honest good faith effort.”

A. Has the Majority, in Effect, Acquitted the Peti-

tioner When They Absolve Him of the Charge

that He Carried Out a “Plan” to Disrupt the

Trial?

Disciplinary proceedings “are adversary proceedings

of a quasi-criminal nature.” In re Ruffalo, 390 U.S. 544,

551 (1967). Although designed to protect the public they

A8

are also “a punishment or penalty imposed on the lawyer.”

Ex parte Garland, 71 U.S. (4 Wall.) 333, 380 (1866).

Therefore, the attorney is “accordingly entitled to pro-

cedural due process, which includes fair notice of the

charge” in such specifics and at such a time as to permit

meaningful preparation of a response. In re Ruffalo, 390

US. at 350; Cf. In re Gault, 387 U.S. 1, 33 (1966).

The charge states that Schulman “knowingly and will-

fully pursued a course of conduct. . . designed and cal-

culated to disrupt the orderly resolution of this litigation.”

The majority, quoting the charge, now absolve the peti-

tioner by stating: “We do not think Schulman knowingly

and willfully pursued a course of conduct designed and

calculated to disrupt the orderly resolution of the litigation

in Ford v. Kinzel,”’ but then the majority affirms saying

“Tnjevertheless, we agree that petitioner’s conduct went

far beyond an honest good faith effort to present his client’s

case,”

In comparing the language of the charge with the

language of the majority’s order it appears that the ma-

jority has dismissed the charge entirely, and, in effect, re-

charged petitioner with bad faith, Although the majority

cites no authority for this proposition I assume they adopt

some type of lesser included offense theory. However,

the problem created by the decision is that I am not sure

what conduct by Mr, Schulman the majority has relied

on or what in fact constitutes “far beyond an honest good

faith effort.” I can only state with confidence that the

language the majority uses derives from the following

statement in McConnell:

While we appreciate the necessity for a judge to have

the power to protect himself from actual obstruction in

the courtroom, or even from conduct so near to the

court as actually to obstruct justice, it is essential to

Ag

a fair administration of justice that lawyers be able

to make honest good-faith efforts to present their

clients’ cases.

In re McConnell, 370 U.S. at 236.

Thus, I question whether the petitioner has had an

opportunity to defend against a finding of his acting “far

beyond an honest good faith effort” based on a charge

that he “knowingly and willfully pursued a course of

conduct designed and calculated to disrupt the orderly

resolution of the trial.” The charge states very specifically

what petitioner is charged with and I feel that an acquittal

of this specific charge should absolve petitioner completely.

B. Is Petitioner Guilty of “Bad Faith’?

Although I question the authority of the majority in

affirming the District Court’s order in the manner dis-

cussed above, I am confident, based on the specific lan-

guage of the charge, that I cannot affirm without at least

a finding of bad faith. As set forth above, the Supreme

Court has stated in In re Ruffalo, supra, that procedural

due process requires fair notice of the charge in such

specifics and at such time as to permit meaningful prepara-

tion of a response, An examination of the charge reveals

no allegation of inadequacy or incompetence, and, in fact,

petitioner admits in his brief that he was “inept in his man-

ner of presentation” and “insufficiently efficient, too slow,

and not sharp.” However, petitioner defends on the

ground that he was not guilty of any plan or scheme to

disrupt the trial, or with any act of “deceit or dishonesty.”

If we assume for the moment that the majority’s ac-

tion in finding petitioner guilty of bad faith is proper pro-

cedurally, the question becomes is petitioner guilty of

bad faith based on his conduct in Ford v. Kinzel, A find-

Al0

ing of mere negligence or incompetence would be insuf-

ficient.

At this point, with the issue properly framed, it would

be well to note that the suspension of an attorney can

destroy “his professional life, his character, and his liveli-

hood.” In re Fisher, 179 F.2d 361 (7th Cir. 1950). There-

fore, we must view “an attorney’s license to practice as

a ‘right’ which cannot lightly or capriciously be taken

from him.” Kivitz v. SEC, 475 F.2d 956, 962 (App. D.C.

1973). After all, ‘the power [to withdraw that right]...

is not an arbitrary and despotic one, to be exercised at

the pleasure of the court, or from passion, prejudice, or

personal hostility; but it is the duty of the court to exercise

and regulate it by a sound and just judicial discretion,

whereby the rights and independence of the bar may

be as scrupulously guarded and maintained by the court,

as the rights and dignity of the court itself.” Ex parte

Secombe, 60 U.S. (19 How.) 9 (1856). The Supreme Court

has admonished that the power “ought always to be ex-

ercised with great caution; and ought never to be exer-

cised except in clear cases of misconduct, which affect

the standing and character of the party as an attorney.”

Ex parte Wall, 107 U.S. (17 Otto.) at 273. Consequently,

in disciplinary proceedings the District Court must find

that “the charge must be sustained by clear and convinc-

ing proof.” In re Fisher, 179 F.2d at 369. On appeal we

must determine if “there was an abuse of discretion or

grave irregularity” by the District Court in applying the

standard of “clear and convincing proof” since the eviden-

tiary hearing before the District Court included the live

testimony of seven witnesses. In re Spicer, 126 F.2d 288,

289 (6th Cir, 1942). See Ex parte Burr, 22 U.S. (9 Wheat.)

529, 530-31 (1824).

The majority, without discussing the standard of re-

view they apply, simply cite In re McConnell, supra, in

All

support of their finding that petitioner’s “conduct went

far beyond an honest good faith effort to present his

client’s case.” However, the majority does not specify

any of the circumstances surrounding petitioner’s actions,

or, in fact, indicate what conduct went “far beyond an

honest good faith effort.”* Moreover, In re McConnell,

on which the majority relies, involved a summary contempt

proceeding (in my view an appreciably less drastic pro-

ceeding than a suspension or disbarment case) in which

the Seventh Circuit’s affirmation of the District Court’s

conclusion that the attorney was guilty was reversed by

the Supreme Court.

McConnell, a lawyer, was summarily found guilty of

contempt of court for statements made while representing

the Parmelee Transportation Company. On appeal, in

Parmelee Transportation Company v. Keeshin, 294 F.2d

310 (7th Cir. 1961), the Seventh Circuit affirmed the Dis-

trict Court’s decision based on certain specifications; how-

ever, Judge Duffy dissenting in part at 317 said: “The

attorneys for the plaintiff were driven to a sense of frustra-

tion due to the District Court’s rulings on offers of proof.

Under such circumstances, it is understandable that an at-

torney might say things which should not have been said.

I think that was the situation in the case at bar.” On ap-

peal, the Supreme Court, with Justice Black writing for

the majority, expressly agreed with Judge Duffy, In re

McConnell, 370 U.S. at 235, and further said: ‘We cannot

agree that a mere statement by a lawyer of his intention

to press his legal contention until the court has a bailiff

stop him can amount to an obstruction of justice that can

4. I assume it may be presumed that the majority simply

adopted Judge Contie’s able opinion regarding his analysis of

Schulman’s conduct in the Ford v. Kinzel trial. However, to fully

understand the circumstances and actions of Schulman in Ford

v. Kinzel requires an examination of the record from Schulman’s

perspective.

Al2

be punished under the limited powers of summary con-

tempt which Congress has granted to the federal courts.”

The Court went on to state:

The arguments of a lawyer in presenting his client’s

case strenuously and persistently cannot amount to a

contempt of court so long as the lawyer does not in

some way create an obstruction which blocks the judge

in the performance of his judicial duty. The peti-

tioner created no such obstacle here.

While we appreciate the necessity for a judge to

have the power to protect himself from actual ob-

struction in the courtroom, or even from conduct so

near to the court as actually to obstruct justice, it is

also essential to a fair administration of justice that

lawyers be able to make honest good-faith efforts to

present their clients’ cases. An independent judiciary

and a vigorous, independent bar are both indispensable

parts of our system of justice. To preserve the kinds

of trial that our system envisages, Congress has

limited the summary contempt power vested in courts

to the least possible power adequate to prevent actual

obstruction of justice, and we think that that power

did not extend to this case.

In re McConnell, 370 U.S. at 236.

Although the Supreme Court apparently felt that the

contempt conviction by the Seventh Circuit in McConnell

primarily rested on one particular statement made by Mc-

Connell, I believe the rationale of Judge Duffy’s dissent in

Parmelee Transportation, which was expressly adopted by

the Supreme Court in McConnell, can and should be ex-

tended to the situation at hand. While petitioner was not

altogether blameless in his conduct in the Ford v. Kinzel

trial, since he evidently was unfamiliar with the Federal

Al3

Rules of Evidence which became effective in 1975, he

nevertheless was confronted with rulings, both evidentiary

and otherwise, throughout the trial, which would be frus-

trating to any attorney.’ For example:

(1) The trial judge persisted, on approximately 7

occasions, in applying the old rule of law that an

attorney cannot impeach his own witness. Rule

607, F.R.Evid., is to the contrary stating that “the

credibility of a witness may be attacked by any

party, including the party calling him.’

(2) The trial judge applied the rule that, until a wit-

ness is shown to be hostile, the witness cannot be

subjected to leading questions. Rule 611(c),

' F.R.Evid., provides, “a witness identified with an

adverse party” may be subjected to “leading ques-

tions”. This is especially pertinent as to the wit-

ness, Gelzer, the supervisor of the Cuyahoga Plan

which was a group formed to assist blacks in their

efforts to assist persons in possible litigation under

the Fair Housing Act. Gelzer was clearly a per-

son identified with the plaintiff, Mrs. Ford, who

was an adverse party as petitioner was represent-

ing the defendant.

(3) The trial judge insisted that only a “custodian”

of the records could be permitted to testify as to

the office records, apparently maintained in the

5. However, I am confident that had Schulman cited the

relevant evidentiary rules to the trial court, the trial judge

would have altered his rulings. The record, however, discloses

very little opportunity afforded to petitioner to argue such matters.

6. “The traditional rule against impeaching one’s own wit-

ness is abandoned as based on false premises. A party does not

hold out his witnesses as worthy of belief, since he rarely has

a free choice in selecting them. Denial of the right leaves the

party at the mercy of the witness and the adversary.” Adv.

Comm. Note to Fed.R.Evid. 607.

Al4

regular course of business, of the Cuyahoga Plan

and, since Gelzer was only a supervisor who an-

swered to his “boss”, the judge ruled that Gelzer

did not qualify as a “custodian.” Rule 803(6),

F.R.Evid., provides for the testimony of a “cus-

todian or other qualified witness. Since Gelzer’s

“boss” resided some distance away, Gelzer should

have been considered an “other qualified witness.”

(4) The trial judge sua sponte, objected to petitioner’s

questions by insisting that no proper foundation

had been laid.? The rule with respect to laying

a proper foundation is, insofar as this case is con-

cerned, dependent upon relevancy. If the rele-

vancy is based upon a condition of fact net al-

ready established by prior evidence, the court

may probe the issue of relevancy, or may admit

the evidence as “conditionally relevant’? subject

to a later ruling.’ In some few instances the trial

7. The reporter noted in the record as a matter of pro-

cedure not only objections by plaintiff's attorney but also oc-

casions when the plaintiff's attorney merely stood but remained

silent due to the trial judge sustaining any objection before the

attorney had a chance to speak. In light of this procedure, the

record indicates a sua sponte objection by the trial judge without

plaintiff’s attorney even standing approximately 100 times. The

judge on these occasions specifically cites improper foundation

as the reason approximately 21 times. The majority of the re-

maining sua sponte objections, although the trial judge often gave

no reason for the objection, I believe also relate to improper

foundation or objection as to form. I note that on many oc-

casions in the Ford v. Kinzel trial plaintiff's attorney merely

stood up without uttering a word and the trial judge sustained

the objection on the grounds of “no proper foundation” or “im-

proper form.”

8. The Advisory Committee’s Note on Rule 104(b), F.R.Evid.,

as reported in Redden & Saltzburg, Federal Rules of Evidence

Manual, states: “If preliminary questions of conditional rele-

vancy were determined solely by the judge, as provided in sub-

division (a), the functioning of the jury as a trier of fact would

(Continued on following page)

Al5

judge in Ford v. Kinzel was clearly correct, as

where petitioner made inquiry as to the marital

status of a witness. In the vast majority of his

rulings, however, the relevancy of the question

was either (a) not explored by the court, (b) not

based upon a condition of fact, or (c) the fact had

otherwise been established by prior evidence.

When confronted by petitioner’s inquiry as to

what the court wanted by way of a foundation,

the trial judge merely advised petitioner that ‘‘this

is your job” and not that of the court.

On one occasion during cross examination of

the plaintiff, petitioner attempted to attack plain-

tiff’s credibility. The trial judge, without ex-

ploring the possibility, directed petitioner to go

on to something else. Petitioner persisted in this

line of questioning since he was apparently con-

vinced that plaintiff had committed perjury.

When the judge again repeated “I have ruled thai

this line of questioning is improper,” the peti-

tioner responded: “How do you know.” At this

point the trial judge directed petitioner to sit

down. Eventually, petitioner was allowed to have

the material portions of the deposition of plaintiff

read into evidence.

Footnote continued—

be greatly restricted and in some cases virtually destroyed. These

are appropriate questions for juries. Accepted treatment, as

provided in the rule, is consistent with that given fact questions

generally. The judge makes a preliminary determination whether

the foundation evidence is sufficient to support a finding of ful-

fillment of the condition. If so, the item is admitted. If after

all the evidence on the issue is in, pro and con, the jury could

reasonably conclude that fulfillment of the condition is not es-

tablished, the issue is for them. If the evidence is not such as

to allow a finding, the judge withdraws the matter from their

consideration.”

Al6

(5) The trial judge prohibited counsel from stating,

in the presence of the jury, anything other than

the fact that an objection was noted. Generally,

the judge allowed counsel to approach the bench

to submit his reasons for the objection, or any

offer of proof if the objection was by the judge

or opposing counsel. On at least 8 occasions, the

judge refused to let petitioner approach the

bench to explain his reasons. Rule 103(a) (2)

F.R.Evid., accords counsel an absolute right to

make an offer of proof as to excluded evidence

unless the testimony sought to be offered ‘was

apparent from the context within which questions

were asked.” On at least two occasions, this

was not so.

(6) In many instances petitioner’s ‘‘misconduct”

stemmed from the deviation by petitioner from

the strict rules of decorum promulgated by the

trial judge for his own court, and not under Rule

83, F.R.Civ.P., which requires that local rules

be adopted by a majority of the judges within a

district.? For example, certain specifications re-

veal that petitioner was charged with

9. I realize that the last sentence of Rule 83 provides: “In

all cases not provided for by rule, the district courts may

regulate their practice in any manner not inconsistent with these

rules.” The Advisory Committee Note indicates that this sen-

tence is taken from the United States Supreme Court Admiralty

Rule 44. But the question remains whether a single district

judge in a district court with multiple judges may invoke “stand-

ing orders” applicable to cases in general, as contrasted with a

single case. In my judgment the issue is debatable but, in this

particular case, it is not, in my opinion, necessary to decide the

question. While the single judge rules are extensive, they do

not provide for disciplinary proceedings in the event of violation.

At best, the Courtroom Procedure Order entered by the trial

judge, without the majority of the district judges joining in

said order, on September 24, 1976, is merely a guide to the

courtroom procedure which the trial judge reasonably expects

to be followed in the preparation and trial of all cases before him.

Al7

a. unnecessary and noisy activity at counsel

table;

b. roaming about the courtroom; and

c. standing at counsel table;

In addition, Schulman was repeatedly admonished

for violating other rules of decorum such as leav-

ing the lecturn during the interrogation of wit-

nesses and, as stated earlier, for proffering his

reasons for objections without first obtaining per-

mission from the Court.’°

(7) Petitioner was fined for contempt on three oc-

casions.

In the first instance Schulman was cross-

examining an adverse witness inquiring whether

counsel for the plaintiff had told witnesses what

to say. The witness answered “No; we were told

to tell the truth.” In response to this answer

Schulman stated “Naturally you’re told to tell

the truth.” Thereupon the trial judge found pe-

titioner in contempt and fined him $250.

In the second instance, petitioner attempted

to ask plaintiff's landlord whether plaintiff had

a yearly lease or a month-to-month lease at the

time of the alleged discrimination. The trial judge

sustained an objection three times (sua sponte

on the last occasion) before implying to petitioner

that he understood where petitioner was heading

with his line of inquiry but that “the testimony

thus far elicited is improper unless you lay a

proper foundation. .. I’m not precluding you

10. I realize that the alleged violations of these rules are

set forth to support the charge that petitioner “knowingly, and

willfully pursued a course of conduct designed and calculated

to disrupt the orderly resolution of the litigation.”

Al8

from the examination.” After the court objected

two more times, sua sponte, petitioner inquired

what would be a proper foundation. The court

responded (out of the jury’s presence) “If you’re

so inexperienced that you don’t know. . . [t]hen

you shouldn’t be practicing here.”” Thereupon the

court prevented, again sua sponte, petitioner’s at-

tempts to lay a proper foundation on three more

occasions before petitioner asked, in front of the

jury, “I’m going to ask for a mistrial.” At this

point the trial judge, after dismissing the jury,

asked petitioner if there was any reason why

the court should not hold him in contempt for

his “very unprofessional conduct,” and his “highly

prejudicial remark.” Petitioner attempted to

answer but the trial judge again found him in

contempt of court and assessed a fine this time

for $500.

On the third and final instance, petitioner was

questioning the defendant as to whether she had

reached a decision regarding a certain potential

tenant in the event the house was available. In

attempting to answer the question the defendant

attempted to give background information on

which she apparently based her decision. The

court stopped the witness and directed her “not

to go away from the question.” (The defendant

had already been admonished at least three times

for rambling.) When the witness started to

answer the question in the same manner, the court

again interrupted and asked “did you, yes or no,

ma’am?” The witness responded “I’m trying to

tell you.” Petitioner then requested the court’s

permission to approach the bench and after getting

permission petitioner apparently stated in a loud

voice, “she has answered the question, your Honor.”

Alg

The Court admonished petitioner about making

such outbursts in the presence of the jury. Pe-

titioner twice denied making any such “outbursts”.

(The record merely indicated the petitioner’s com-

ment was at the bench and thus “outside the

presence of the jury.”) After further dialogue

(apparently loud enough for the jury to hear)

regarding whether petitioner should be held in

contempt the court recessed the jury and ad-

monished petitioner at length regarding his prej-

udicial conduct and failure to respect the court’s

rulings.*’ The court then found petitioner in con-

tempt and fined him an additional $500.'*

11. Specifically, the court admonished petitioner as follows:

“Mr. Schulman, because of your outbursts in front of the

jury again, I have been required to dismiss the jury... .

Your conduct, as I said before, is reprehensible. You are

making prejudicial statements in the presence of this jury.

Your theatrics, your expressions, everything that you do is

designed to create a prejudice. You are constantly pro-

voking witnesses and the Court.

As I have tried to explain to you on many occasions,

Mr. Schulman, when the court rules, your exceptions are

noted. In the event that my rulings are improper or in-

correct, you have a right to appeal whatever the decision in

this case may be. But your conduct and your actions and

the improper ruling of this court is not excuse for that

conduct.

Now, the Court has listened to the question, the Court

has ruled that this lady’s response has been concluded, that

she would not be permitted to go beyond the answer given.

You insist upon taking issue with the Court after the ruling;

your client insists upon insisting on answering when the

Court has ruled.

I understand the reaction of your client. Since I am

confident that she has not had experience in testifying, her

conduct is excusable. Your conduct is inexcusable.”

12. The three summary contempt actions are not before the

court at this time as the actions of the trial court were affirmed

by a prior panel of this Court, at which time the disbarment

action by the trial court was remanded to be considered by another

(Continued on following page)

A20

In addition, without trying to specify and weigh all

of the actions of the trial judge versus the petitioner’s, it

is impossible to deny, after reading the entire record, that

there was fault on each side with both the trial judge and

the petitioner demonstrating ill will towards one another

and hot tempers.’* I wholeheartedly agree with the rea-

soning in the order by a prior panel of this court when it

reversed the trial judge’s disbarment order after the Ford

v. Kinzel trial remanding the case back to the Northern

District of Ohio to be heard by a different judge due to

the fact that “marked personal feelings were present

on both sides, and it appear[ed] that Schulman’s conduct

left personal stings, however justified.”

Under these circumstances and based on the reason-

ing of Judge Duffy’s dissent in Parmelee Transportation,

Footnote continued—

judge. However, as to the summary contempt actions, the

previous panel did not discuss any of the details of the alleged

offenses. As to the three instances where petitioner was fined

for contempt I only point them out as examples of the cir-

cumstances present in the Ford v. Kinzel trial.

13. Both the trial judge and Schulman are guilty of directing

insulting remarks at one another on occasion. For example, in

connection with the defendant’s inability to testify for the first

time due to nerves Mr. Schulman explained, “a doctor will not

help her. I know her condition; if you want me to explain it

to you, I'll explain it to you,” In response the trial judge

stated, in front of Mr. Schulman’s client, “I didn’t know that

you were a physician, Mr. Schulman, among your other talents.”

In another instance out of the hearing of the jury and just

prior to the second contempt citation the trial judge, in ad-

monishing Schulman to lay a proper foundation stated, “I’m not

going to tell you how to try your case. If you're so inex-

perienced that you don’t know ... [t]hen you shouldn’t be

practicing here.”

On a third occasion, subsequent to the above two instances,

the court admonished Schulman during voir dire examination of

a witness by Schulman to “stop roaming around and please return

to the lecturn! You would think after three days, you'd know

what the procedure is.” In response Schulman stated: “I have

a comment for it, but I'll keep it.”

A21

supra, which was adopted by ‘he Supreme Court in Mc-

Connell, I cannot agree with the majority’s determination

that petitioner was acting in bad faith. Instead, what we

have is the majority in effect simply punishing petitioner

for not being a good lawyer,’* for not adhering to the

strict rules of decorum promulgated by the trial judge

for his own court,’® and for being too persistent. After

examining petitioner’s conduct in relation to that of the

trial judge I conclude that we are not confronted with

any act of fraud or dishonesty or with any act of bad

faith, but rather we have a case involving courtroom pro-

cedure which obviously offended the trial judge in Ford

v. Kinzel but which may have been of no significance with

another judge.

The most grievous offense petitioner committed in my

opinion was petitioner’s continuing argument on motions

and rulings after express orders by the trial judge to

cease. While I am aware of the Supreme Court’s instruc-

tion in Sacher v, United States, 343 U.S. 1, 9 (1951), which

says that “if [a] ruling is adverse, it is not counsel’s right

to resist it or insult the judge—his right is only respect-

14. It is interesting to note that the effect of the District

Court order as modified by the majority’s order is to suspend

petitioner until he achieves a proficiency in and understanding

of the Federal Rules of Civil Procedure, Criminal Procedure,

Evidence, Local Civil Rules for the Northern District of Ohio

and the ABA Code of Professional Responsibility. In addition,

petitioner must attend six trials (3 jury) and subscribe to an

oath that he will conduct himself in a manner commensurate

with the ABA Code of Professional Responsibility.

15. Indeed, many of the specifications which support the

charge that petitioner willfully pursued a course of conduct

calculated and designed to disrupt the trial represent pettiness.

For example: petitioner failed to mark and exchange proposed

exhibits; petitioner failed to sequentially index all exhibits in-

tended to be used at trial; petitioner stood at counsel table; and

petitioner shuffled papers, books, and documents, The indexing

was apparently required by pretrial rules and should have been

handled prior to the actual trial.

A22

fully to preserve his point for appeal,” I note that the Court

also states in Sacher that “of course, it is the right of coun-

sel for every litigant to press his claim, even if it appears

farfetched and untenable, to obtain the court’s considered

ruling. Full enjoyment of that right, with due allowance

for the heat of controversy, will be protected by appellate

courts when infringed by trial courts.” Sacher, id. at 9.

The Seventh Circuit elaborates further in In re Dellinger,

461 F.2d 389, 399 (7th Cir. 1972), after first discussing

the Sacher case, by stating that

When the judge is arbitrary or affords counsel in-

adequate opportunity to argue his position, counsel

must be given substantial leeway in pressing his con-

tention, for it is through such colloquy that the judge

may recognize his mistake and prevent error from

infecting the record. It is, after all, the full intel-

lectual exchange of ideas and positions that best fa-

cilitates the resolution of disputes. However, this is

not to say that attorneys may press their positions

beyond the court’s insistent direction to desist. On the

contrary, the necessity for orderly administration of

justice compels the view that the judge must have the

power to set limits on argument. We simply en-

courage judges to exercise tolerance in determining

those limits and to distinguish carefully between hesi-

tating, begrudging obedience and open defiance.

Because of the trial judge’s rulings where he pre-

vented petitioner from approaching the bench to submit

his position regarding objections and where the trial judge

objected to petitioner’s inquiries sua sponte on the grounds

of relevancy without exploring the issue, I believe that

petitioner’s conduct throughout the trial is at least partially

excusable since it should be characterized as ‘‘begrudging

obedience” rather than “open defiance.” On the occasion

A23

that petitioner perhaps went too far, the appropriate rem-

edy was summary contempt.

I admit that petitioner was inadequate in his manner

in presentation but he has not been charged with this

offense. Rather, he has been accused of planning or schem-

ing to disrupt the orderly resolution of the trial. As dis-

cussed supra, when the majority found petitioner not guilty

of any plan or scheme but nevertheless stated that his con-

duct went “far beyond an honest good faith effort,” I

question whether petitioner has in effect been acquitted.

However, even if the majority is allowed to bend the

charge so as to allow an affirmation of the District Court’s

sentence with a slight modification based on a finding of

bad faith, I am confident that the charge should not and

cannot be altered any further. Consequently, based on

this charge, I cannot affirm since it is my opinion that

what we have in Ford v. Kinzel is simply poor lawyering

by Schulman but conducted in good faith in the defense

of his client’s case,

III

I note that the District Court, in finding petitioner

guilty, stated that

the overriding issue [of disciplinary proceedings] “is

the public interest and the attorney’s right to continue

to practice a profession imbued with public trust.”

In re Echeles, supra at 350.

Although I agree that public interest is a crucial issue

in any disciplinary proceeding which must be balanced

with the attorney’s right to practice his profession. I be-

lieve that in this proceeding the overriding issue is whether

petitioner’s right to procedural due process, which includes

fair notice of the charge, has been violated.

A24

Nevertheless, if we assume that public interest must

be protected in this instance and that petitioner should

be disciplined for his conduct in Ford v. Kinzel,'® whether

it involves bad faith or not, we are still left with the dif-

ficult question of how much punishment is appropriate."”

16. Public interest in a professional and ethical bar is not

the only interest at stake in disciplinary proceedings since sanc-

tions can amount to loss of livelihood and professional reputation,

See Erdman v, Stevens, 458 F.2d 1205, 1209-10 (2nd Cir, 1972).

In re Ming, 469 F.2d 1352, 1355 (7th Cir, 1972).

17. If we conclude, as I did, that petitioner’s conduct does

not involve bad faith and we assume that there is no violation

of petitioner’s right to procedural due process, the question

becomes should an attorney be suspended or disbarred for mere

inadequacy in representing his client's case? To me, this is a

more difficult question to answer especially in light of the fact

that petitioner, in effect, won his case in Ford v, Kinzel where

the jury, although finding in favor of the plaintiff, only awarded

compensatory damages of $1 and punitive damages of $374. I

note that most reported cases of disciplinary actions against at-

torneys involve either an act of dishonesty or the failure to

perform an obligation undertaken on behalf of a client. See e.g

Annot, Attorney-Negligence-Discipline, 96 A.L.R.2d 823 (1964).

Indeed, an analysis of In re Echeles, supra, reveals that the lan-

guage on which the District Court relies for the public interest

argument is dictum in that case, with the Seventh Circuit in

Echeles relying on another Seventh Circuit case, In re Fisher,

supra, and the Supreme Court’s decision, Ex parte Wall, 107 U.S.

(17 Otto.) at 273. Further analysis reveals that in In re Fisher

179 F.2d at 369, the Seventh Circuit also required that the charges

be “sustained by clear and convincing proof and the misconduct

must have been fraudulent and the result of improper motives.”

In Ex parte Wall, supra, the disbarment proceeding was premised

upon an unlawful hanging with the Supreme Court concluding

that such “unlawful acts . .. showing such an utter disregard

and contempt for the law constitute sufficient grounds to strike

the name of an attorney from the rolls so as to protect the court

from ... persons unfit to practice as attorneys therein.”

The Supreme Court also stated that

It is laid down in all the books in which the subject

is treated, that a court has power to exercise a summary

jurisdiction over its attorneys to compel them to act

honestly towards their clients, and to punish them by fine

and imprisonment for misconduct and contempts, and, in

gross cases of misconduct, to strike their names from the

roll. If regularly convicted of a felony, an attorney will

(Continued on following page)

A25

In addressing this issue I turn for guidance to the various

disciplinary proceedings arising out of the Communist trial

of United States v. Foster, aff'd. sub nom. United States

v. Dennis, 183 F.2d 201 (2nd Cir. 1950), aff'd. Dennis v.

United States, 341 U.S. 494 (1951).

In Dennis, five lawyers, including Isserman, were ad-

judged guilty of contempt for their conduct while repre-

senting several defendants.'* After the contempt convic-

tions were affirmed in Sacher v. United States, 343 U.S.

1 (1951), the Bar Association for the City of New York

instituted disciplinary proceedings against Isserman in the

United States District Court for the Southern District of

New York with Judge Hincks finding that Isserman should

be suspended from that district for a period of two years.

Isserman filed a notice of appeal, but did not pursue it be-

cause the New York City Bar instituted a new proceeding

for disbarment before the Southern District of New York

pursuant to Rule 5(b)(2).* This disciplinary proceeding

was precipitated by the fact that the Supreme Court of

New Jersey had entered an order of disbarment against

Isserman due to his conduct in Dennis, and apparently be-

cause Isserman had been convicted of statutory rape

Footnote continued—

be struck off the roll as of course, whatever the felony may

be, because he is rendered infamous. If convicted of a mis-

demeanor which imports fraud or dishonesty, the same course

will be taken. He will also be struck off the roll for gross

malpractice or dishonesty in his profession, or for conduct

gravely affecting his professional character.

Ex parte Wall, 107 U.S, (17 Otto.) 265, 273 (1882).

18. Judge Hand described the conduct as including “per-

sistent obstructive colloquies, objections, arguments, and many

groundless charges against the court. . . of judicial misconduct.”

United States v. Sacher, 182 F.2d 416 (2nd Cir. 1950).

19. Rule 5(b)(2) of the Southern District of New York pro-

vided for the disbarment of any attorney who had been dis-

barred in any other court.

A26

twenty-seven years before.*® In re Isserman, 9 N.J. 269,

87 A.2d 903 (1952). In this second proceeding before the

Southern District of New York, Chief Judge Knox, after

noting that Isserman had been disbarred previously by

New Jersey because of a statutory offense, filed a memo-

randum for disbarment. However, he delayed entering

the order pending the Supreme Court’s decision in Sacher

v. Association of the Bar of the City of New York, 347 U.S.

388 (1954).

Meanwhile, based on the New Jersey disbarment, the

United States Supreme Court, in accordance with Rule 2,

directed Isserman to show cause why he should not also

be disbarred from practice in that Court.*! After hearing

the case, the Court concluded, in an unusual four to four

split, that an order disbarring Isserman from practice

should issue since the attorney failed to meet his burden.

The dissent, however, written by Mr. Justice Jackson and

20. The United States Supreme Court noted the following:

The Supreme Court of New Jersey, in its nine-page

opinion, devoted one sentence to noting that respondent had

been convicted of statutory rape in 1925 and thereupon sus-

pended from practice for a short period. That one sentence

is followed by this language: “The controlling considera-

tion in reaching a determination as to the measure of dis-

cipline, however, is respondent’s scandalous and inexcusable

behaviour in seeking to bring the administration of justice

into disrepute in a trial that lasted nine months.”

In re Isserman, 345 U.S. 286, 290 (1952).

21. Rule 2 par. 5 of the Supreme Court stated:

Where it is shown to the court that any member of its

bar has been disbarred from practice in any State, Territory,

District, or Insular Possession, or has been guilty of conduct

unbecoming a member of the bar of this court, he will be

forthwith suspended from practice before this court, and

unless, upon notice mailed to him at the address shown in

the clerk’s records and to the clerk of the highest court of

the State, Territory, District or Insular Possession, to which

he belongs, he shows good cause to the contrary within forty

days he will be disbarred.

A27

joined by Justice Black, Frauxfurter and Douglas, con-

cluded as follows:

Primarily because of these contempts, the Su-

preme Court of New Jersey disbarred Isserman. It

also considered his conviction in that State of statu-

tory rape in 1925. At the time of conviction, however,

the New Jersey courts found such extenuating c‘r-

cumstances that only a small fine and a temporary

suspension from practice were deemed to make the

punishment fit the crime. Five years after this con-

viction, this Court, asking no question which would

have called for disclosure of the conviction, admitted

Isserman to its bar, it appearing that he was then in

good standing before the courts of New Jersey. Under

these circumstances, we do not think we can now at-

tach any weight to this dereliction. ...

If the purpose of disciplinary proceedings be cor-

rection of the delinquent, the courts defeat the purpose

by ruining him whom they would reform. If the pur-

pose be to deter others, disbarment is belated and

superfluous, for what lawyer would not find deterrent

enough in the jail sentence, the two-year suspension

from the bar of the United States District Court, and

the disapproval of his profession? If the disbarment

rests, not on these specific proven offenses, but on

atmospheric considerations of general undesirability

and Communistic leanings or affiliation, these have not

been charged and he has had no chance to meet them.

We cannot take judicial notice of them. On the occa-

sions when Isserman has been before this Court, or

before an individual Justice, his conduct has been un-

exceptionable and his professional ability consider-

able.

A28

We would have a different case here if the record

stood that Isserman, with others, entered into a de-

liberate conspiracy or plans to obstruct justice. But

that charge has been found by the Court of Appeals

to lack support in the evidence, and again in the dis-

ciplinary proceeding in District Court it was not found

to be proven. What remains is a finding that he was

guilty of several unplanned contumacious outbursts

during a long and bitter trial.

Perhaps consciousness of our own short patience

makes us unduly considerate of the failing tempers

of others of our contentious craft. But to permanently

and wholly deprive one of his profession at Isserman’s

time of life and after he has paid so dearly for his

fault, impresses us as a severity which will serve no

useful purpose for the bar, the court or the delinquent.

In re Isserman, 345 U.S. 286, 291-92 (1953). (Emphasis

added).

In 1954, approximately one and one-half years later,

the Supreme Court reopened the Isserman decision after

changing its rules to require a majority vote in all dis-

barment proceedings.** See In re Isserman, 348 U.S. 1

(1954). In a memorandum opinion the Supreme Court set

aside its order disbarring Isserman, concluding that there

were no “ground[s] for disbarment of Isserman.” Id.

Four years later in 1958, Chief Judge Clancy from

the United States District Court for the Southern Dis-

trict of New York finally entered Judge Knox’s “delayed”

memorandum of disbarment. On appeal, however, the

Second Circuit reversed the disbarment order and dis-

22. Rule 8 of the Supreme Court provided that “no order

of disbarment will be entered except with the concurrence of

a majority of the justices participating.”

A29

missed the proceeding entirely. In doing so the Second

Circuit stated:

[M]jaking the thorough examination of the record

which these cases require us to undertake, we are

constrained to conclude that Judge Hincks’ very

careful and precisely buttressed judgment marks the

extent of the punishment appropriate for this ap-

pellant. Indeed, the two-year suspension of Isserman

ordered by Judge Hincks cannot be considered other

than severe... On the record Isserman’s derelictions

seem comparatively mild, justifying four justices of

the Supreme Court in their statement, “What remains

is a finding that he was guilty of several unplanned

contumacious outbursts during a long and bitter trial.”

In re Disbarment of Isserman, supra, 345 U.S. 286,

294, 73 S.Ct. 676, 680, 97 L.Ed. 1013. Hence the two

year suspension should have marked the ending of

his punishment.

Association of the Bar of the City of New York v. Isser-

man, 271 F.2d 784, 785 (2nd Cir. 1959) (Emphasis added).

Although Isserman, like petitioner, has been acquitted

of any plan to obstruct justice and instead has been found

to have committed “several unplanned contumacious out-

bursts during a long and bitter trial,” I conclude, after

comparing Isserman’s conduct in Dennis (which is out-

lined in part in United States v. Sacher, 182 F.2d 416,

430-53 (2nd Cir. 1950)) with petitioner’s conduct in

Ford v. Kinzel, that Isserman’s behavior is at least as

egregious as petitioner’s or worse.** But, as set forth in

23. Indeed petitioner was never sentenced to jail for con-

tempt whereas Isserman was sentenced to jail for six months by

the trial judge in Dennis. In addition, petitioner, unlike Isser-

man, has never committed a statutory offense. In fact, prior

to this proceeding, petitioner had never been previously disci-

plined.

A30

the analysis above, Isserman was originally suspended for

only two years by the United States District Court for

the Southern District of New York and, although this

suspension was temporarily replaced by a disbarment order

from the same court, the Second Circuit, in reversing the

disbarment, stated that even the two year suspension

would be over-severe. Furthermore, Isserman was, in ef-

fect, suspended by the United States Supreme Court for

only one and one-half years. (Indeed, the dissent written by

Mr. Justice Jackson in In re Isserman, supra, 345 U.S. at

243 asked “what lawyer would not find deterrent enough in

the jail sentence, the two year suspension from the bar

. . and the disapproval of his profession.”) In contrast,

petitioner has been suspended over three years and eight

months. Thus, based on this discrepancy, in light of my

conclusion that petitioner’s conduct in Ford is not as bad

as that of Isserman’s in Dennis, I believe that petitioner’s

punishment is over-severe.

In support of this conclusion is the Supreme Court

decision in Sacher v. Association of the Bar, 347 U.S. 388

(1954). Sacher, like Isserman, was adjudged guilty of

contempt while representing various defendants in Dennis.

As a result, Sacher was disciplined along with Isserman

by Judge Hincks in the United States District Court for

the Southern District of New York. However, although

Isserman was originally suspended for two years, Sacher

was disbarred as of January 11, 1952, because Sacher was

found to be guilty of more egregious conduct. On appeal,

the United States Supreme Court, after noting that the

District Court found no conspiracy or moral turpitude being

involved and that the conduct of Sacher “stemmed from

excess of zeal for his clients that obscured his recognition

of responsibility as an officer of the court,” reversed the

disbarment order of Judge Hincks on April 5, 1954, and

A31

concluded that “permanent disbarment in this case [was]

unnecessarily severe.” Sacher v. Association of the Bar,

347 U.S. at 388-389. Subsequently, Sacher was not sub-

jected to any further discipline after the Supreme Court

decision.**

In comparing Sacher’s conduct in Dennis to petitioner’s

in Ford v. Kinzel, one can only conclude that petitioner’s

conduct does not begin to compare as Sacher’s conduct

was far more egregious. See United States v. Sacher,

182 F.2d 416, 454 (2nd Cir. 1950). Nevertheless, Sacher

was effectively suspended for only two years and three

months whereas petitioner, as stated before, has already

been suspended for over three years and eight months.

Based on the above analysis and in light of the trial

judge’s procedures in Ford v. Kinzel which should serve

in this instance as mitigating circumstances, I conclude

that if the object is to deter petitioner and others, like

petitioner, then three contempt citations, a suspension

from practice for over three years and eight months, and

the disapproval of one’s profession is excessive and un-

necessary. Petitioner’s conduct simply represents poor

advocacy conducted in good faith and I feel that he has

simply been punished enough.”

24. <A review of the Sacher file from the Southern District

of New York reveals that no further discipline was taken fol-

lowing the Supreme Court reversal. Indeed, the Second Circuit

in Association of the Bar v. Isserman, 271 F.2d at 785, stated four

years after the Supreme Court reversed Sacher’s disbarment that

pce in Dennis besides Isserman had been suspended, or

sbarred.

25. For the past several years the Judicial Conference Im-

plementation Committee on Admission of Attorneys to Federal

Practice has been meeting to devise plans for the improvement

of those attorneys seeking to practice in the federal courts, in-

cluding projects in 14 districts (Ohio not included). This will

(Continued on following page)

A32

CONCLUSION

I respectfully dissent except as noted above. At the

most, I would close this unfortunate event in petitioner's

life by reprimanding him and reminding him that he must

adhere to the rulings of trial judges, even though they may

be erroneous.

Footnote continued—

involve written or oral examinations, requirements of trial ex-

perience, peer review, student practice, and continuing legal

education or trial advocacy programs. This commendable un-

dertaking should ultimately improve the caliber of attorneys

seeking to practice in a federal court. But it deals solely with

admission to the bar and makes no provision for disciplinary

proceedings against incompetent or ill prepared attorneys, More-

over, it will provide for “grandfathering” the attorneys already

admitted. Thus, Schulman, now 75 years of age, would not be

a oe to the requirements when and if they are actually

adopted.

A33

MEMORANDUM OPINION AND ORDER OF THE

UNITED STATES DISTRICT COURT

(Filed February 12, 1982)

Civil Action C79-1117A

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

IN THE MATTER OF:

MILTON PHILIP SCHULMAN

MEMORANDUM OPINION AND ORDER

ConriE, J.

This proceeding was initiated to determine whether

disciplinary action should be taken against respondent Mil-

ton Philip Schulman, who is an attorney admitted to prac-

tice before the United States District Court for the North-

ern District of Ohio, The United States Attorney charges

respondent with unprofessional courtroom conduct during

the course of the civil proceedings in the case captioned

Ford v. Kinzel, No. C78-1169 (N.D. Ohio, filed Sept. 8,

1978). The following shall constitute the Court’s findings

of fact and conclusions of law. See Fed. R. Civ. P. 52(a).

iF

Prior History

The action in Ford v, Kinzel was instituted upon a

complaint alleging housing discrimination in violation of

42 U.S.C. $1981 and §1982. A jury trial was commenced

on December 12, 1978, and concluded on December 21,

A34

1978. On December 20, 1978, after the jury had retired

to deliberate, a disciplinary action was brought against

respondent by the trial judge.

The presiding judge, the Honorable Robert B. Krupan-

sky, suspended the proceedings and conducted a show cause

hearing to afford respondent the opportunity to demon-

strate to the trial court why his name should not be stricken

from the roll of attorneys authorized to practice before the

United States District Court for the Northern District of

Ohio. The trial judge predicated the disciplinary action

upon respondent’s appearance as counsel for defendants

in Ford v. Kinzel.

On February 22, 1979, an Order was issued by the

trial judge instructing the Clerk to strike respondent’s

name from the roll of attorneys authorized to appear and

engage in the practice of law before the Bar of this District,

and imposing conditions for his readmission. This Order

was issued in accordance with the trial court’s prior Memo-

randum and Order finding that respondent knowingly and

wilfully pursued a course of professional misconduct both

prior to and throughout the trial of the Ford case.

The United States Court of Appeals for the Sixth

Circuit found error in the procedures deployed in the

disciplinary proceeding against respondent. The Sixth Cir-

cuit articulated two reasons for its conclusion. First, the

Court determined that there was no apparent urgency

requiring the show cause hearing to be conducted upon

the short notice given respondent. Second, the Court con-

cluded that the matter should have been referred to an-

other judge because of the marked personal feelings on

both sides. The Order disciplining respondent was there-

fore vacated and the case remanded. The matter was

then reassigned to this Court for further proceedings.

A35

II.

Disciplinary Enforcement in the United States District

Court for the Northern District of Ohio

Local Civil Rule 2.09 embodies the only published

expression of the procedures and professional standards

governing disciplinary enforcement in this District. It

provides in relevant part that

Any member of the Bar of this Court may, for

good cause shown and after having been given an

opportunity to be heard, be disbarred, suspended from

practice for a definite time, reprimanded, or subjected

to such other discipline as the Court may deem

proper.’

Respondent challenges on constitutional grounds the

paucity of published guidelines for disciplinary enforce-

ment in this District and, therefore, the propriety of the

instant action. At issue is the legitimate scope of the

federal court’s power to regulate the members of the legal

profession admitted to practice before it. It is a power

that must be exercised consistent with both the procedural

and substantive components of the Due Process Clause.

Respondent’s constitutional challenge is not insubstantial

and requires careful analysis.

Regulating the discipline of attorneys practicing before

the federal courts was the subject of legislation introduced

in Congress in 1971, 1973, and 1975. Faced with the threat

of legislative interference, the Standing Committee on Pro-

fessional Discipline of the American Bar Association em-

barked upon the formidable task of drafting uniform model

1. Local Civil Rule 2.09 also contains provisions governing

the effect of disciplinary actions by other courts and the unau-

thorized practice of law in this District, which are not pertinent

to the within disciplinary proceeding.

A36

disciplinary rules for the federal courts. The need for

model rules was also evident “because federal discipline

in many parts of the country is disorganized, nonuniform,

in violation of due process, and detrimental to the reputa-

tion of the profession in the eyes of the public.” ABA

Reports to the House of Delegates at 5 (February, 1978).

The laudable efforts of the ABA produced the Model Fed-

eral Rules of Disciplinary Enforcement, which has been

adopted by a number of the courts in the federal system.

However well-advised it may be either to adopt in

some form the Model Federal Rules of Disciplinary En-

forcement or to draft comparable exacting procedures and

standards, that this District has published what amounts

to no more than an acknowledgement of the authority

to regulate professional conduct does not alone compromise

the constitutional guarantees of the Due Process Clause.

The inherent power and obligation of the judiciary to

monitor in the public interest the ranks of those who

practice before it has a history preceding that of the federal

court system.

It is a traditional rule of the common law courts

that the power to conduct disciplinary actions against mem-

bers of the Bar rests exclusively with the court. See

Ex parte Secombe, 60 U.S. (19 How.) 9, 13 (1856). This

power is a derivative of the court’s inherent authority

to admit attorneys to practice. See Ex parte Robinson,

86 U.S. (19 Wall.) 505, 512 (1873); In re Echeles, 430

F.2d 347, 349 (7th Cir. 1970). “The federal court is free

to and should take measures against unethical conduct if

‘and when it occurs in connection with any proceeding

pending before it.” Sanders v. Russel, 401 F.2d 241, 246

(5th Cir. 1968).

The manner in which disciplinary proceedings are con-

ducted is a matter of judicial discretion. See Randall

A37

v. Brigham, 74 (7 Wall.) 523, 540 (1968); In re Ming, 469

F.2d 1352, 1355 (7th Cir. 1972). There is no indispensable

constitutional requirement that this judicial discretion only

be exercised in accordance with procedures that are pub-

lished as local rules. What due process does require, how-

ever, is that the disciplinary power is not used in an

oppressive, arbitrary or unfair fashion. See In re Ruffalo,

390 U.S. 544, rehearing denied, 391 U.S. 961 (1968); Randall

v. Brigham, supra; Ex parte Secombe, supra, Exclusion

from the practice of law cannot be accomplished in a

manner or for reasons in contravention of the Due Process

Clause. Willner v. Committee on Character and Fitness,

373 U.S. 96 (1963). Schware v. Board of Bar Examiners,

353 U.S. 232 (1957).

The procedural component of the Due Process Clause

requires fair notice of the charges of misconduct and a

meaningful opportunity to show cause why the accused

practitioner should not be disciplined. See In re Ruffalo,

supra at 555; Theard v. United States, 354 U.S. 278, 282

(1957); In the Matter of Massengale, 554 F.2d 301 (6th

Cir.), cert. denied sub nom., Massengale v. United States

District Court for the Eastern District of Kentucky, 434

U.S. 927 (1977). All the procedures necessary to protect

against an erroneous deprivation of a property interest

have been made available to respondent in the instant

action.

Respondent has had the benefit of those procedures

attendant adversary judicial proceedings. Notice of the

charges of professional misconduct were served. Ample

opportunity with benefit of counsel to file pre-trial mo-

tions, submit written briefs, and prepare competent proofs

for trial was afforded. Testimonial and documentary evi-

dence was adduced under the test of the rules of evidence

and was duly received by the Court through a formal

A38

adjudicatory show cause hearing. Impartiality has been

enhanced by the reassignment of these proceedings to

this Court.

The substantive component of the Due Process Clause

requires that the professional standards circumscribing the

conduct regulated provide advance and specific warning

of the conduct prohibited. In re Bithoney, 486 F.2d 319,

324 (1st Cir. 1973); Halleck v. Berliner, 427 F.Supp. 1225,

1240 (D.D.C. 1977). The professional standards imposed

can legitimately proscribe only that ‘‘conduct which all

responsible attorneys would recognize as improper.” In

re Ruffalo, supra at 555 (White, J., concurring). It is im-

permissible for a federal court to “deprive an attorney

of the opportunity to practice his profession on the basis

of a determination made after the fact that conduct is

unethical if responsible attorneys would differ in appraising

the propriety of that conduct.” Id. at 556.?

The nature of the charges against respondent satisfied

the substantive due process requirements for disciplining

a member of the Bar in this District. Local Civil Rule

2.09 establishes a “good cause shown” standard for dis-

ciplining any member of the Bar. Local Civil Rule 2.06

requires each applicant to take or subscribe to an Oath

of Affirmation that obliges, inter alia, the attorney to con-

duct himself “according to the law and the recognized

standards of conduct.’”’ Within the legal profession the

recognized standard of conduct is the ABA Code of Pro-

2. It is important to distinguish the constitutional problems

caused by retrospective application of vague standards from the

difficulties in determining whether marginal conduct falls below

recognized professional standards. That the chore of deciding

the marginal case is an arduous one does not taint an otherwise

constitutional standard of professional conduct. See United

States v. Nat’l Dairy Products Corp., 372 U.S. 29, 32 (1963);

United States v. Harris, 347 U.S. 612, 618 (1954).

A39

fessional Responsibility. Thus, Local Civil Rule 2.06 places

each attorney admitted to practice in the District on notice

that the contours of the good cause standard are set by the

Code of Professional Responsibility.

That the District has not republished the Code word

for word in its Local Civil Rules does not render the good

cause standard unconstitutionally vague.* The exactness

of the standard is abundantly apparent when examined in

the context of a discrete professional group. “The legal

profession has developed over a considerable period of

time a complex code of behavior ....” In re Bithoney,

supra at 324. It is to these professional standards em-

bodied in the ABA Code of Professional Responsibility

that the phrases “for good cause” and “the recognized

standard of conduct” refer. Local Civil Rule 2.06 & 2.09.

III.

The Charges of Misconduct Against Respondent.

Twenty specific acts of misconduct have been noticed

in support of the United States Attorney’s general charge

that respondent intentionally pursued a course of conduct

designed and calculated to disrupt the orderly resolution

of the cause of action commenced in Ford v. Kinzel.4 Each

of the twenty specifications of misconduct shall be ex-

amined within the parameters of one or more of four

general categories of courtroom misconduct.

3. The good cause standard of this District is no less

specific than the general reference made to the Code in Rule

IV(B) of the Model Federal Rules of Disciplinary Enforcement:

“Acts or omissions by an attorney admitted to practice before

this Court, individually or in concert with any other person or

persons, which violate the Code of Professional Responsibility

adopted by this Court shall constitute misconduct and shall be

grounds for discipline, whether or not the act or omission oc-

curred in the course of an attorney-client relationship.”

4. The twenty specifications of misconduct charged are set

out in full in the appendix.

A40

In support of the allegations, the United States Attor-

ney relies heavily upon the pre-trial and trial record in

Ford v. Kinzel. Additional testimonial evidence was re-

ceived by the Court relative to respondent’s trial de-

meanor. Respondent also testified on his own behalf.

Medical testimony and documentation was received on

the issue of respondent’s physical and mental health at

the time of trial. The United States Attorney introduced

the transcript of a state trial in rebuttal to the medical

opinion evidence submitted on respondent’s behalf.

Respondent is a septuagenarian and a solo private

practitioner. He appeared unassisted in Ford v. Kinzel

as counsel for defendants and had no previous experience

in either civil rights cases or federal litigation. The Ford

case was marked by high levels of emotion on the part of

counsel, the parties, and the witnesses. Plaintiff is an at-

torney with twenty years experience in the state courts.

Prior to the instant action, respondent had never been

the subject of a disciplinary proceeding. His conduct dur-

ing the Ford case, however, resulted in three summary

citations for contempt pursuant to Fed. R. Crim. P. 42(a),

and the institution of the within disciplinary action.

The Court finds, as charged by the United States At-

torney, that respondent knowingly and wilfully pursued

a course of conduct both prior to and throughout the Ford

trial designed and calculated to disrupt the orderly resolu-

tion of the case. Turning to the four general categories of

courtroom misconduct in which twenty specifications

charged are grouped, the clear and convincing weight of

the evidence’ duly received by the Court establishes the

following:

5. For the proposition that the “clear and convincing” stan-

dard is the appropriate burden of proof in a disciplinary pro-

ceeding, see Collins Security Corp. v. SEC, 562 F.2d 820 (D.C.

(Continued on following page)

A4l

A.

Pre-trial Conduct: Specification No. 1.

On September 11, 1978, the trial court issued its

standardized eighteen page Order that prescribed a de-

tailed set of rules and procedures governing the pre-trial

practice and discovery of counsel. The standard Order

issued in civil cases by the trial judge accommodates the

interests of judicial economy and facilitates counsel in the

preparation and presentation of the case. The final pre-

trial was scheduled for December 11, 1978, and trial pro-

ceeded as scheduled on December 13, 1978. With costs

assessed to defendants, the trial judge granted respondent

an extension that delayed completion of the pre-trial until

the following morning. During the pretrial stage, re-

spondent’s inadequate grasp of the federal and local rules

governing civil proceedings first surfaced and the trial

judge forewarned him to correct the situation.

It is clear from the record that respondent failed to

comply with the September 11th Order as set forth in

paragraphs (a) through (e) and (g) of specification no.

1. Paragraph (f) contains the allegation that respondent

did not file a witness list prior to December 11, 1978,

but there is nothing to suggest that he was so required.

Witness lists were to be filed at the last pre-trial. At

that time an incomplete, hand-written list was submitted.

Footnote continued—

1977); In re Fisher, 179 F.2d 361 (7th Cir.), cert. denied sub nom.,

Kerner v. Fisher, 340 U.S. 825 (1950); In re Ryder, 263 F.Supp.

360 (E.D. Va.), aff'd, 381 F.2d 713 (4th Cir. 1967). It is the

charging party that has the ultimate burden of proving that the

attorney should be disciplined. Charlton v. FTC, 543 F.2d 903,

906 (D.C. Cir. 1976). But cf. In re Isserman, 345 U.S. 286

(1953) (Under the Supreme Court’s local rules, respondent has

the burden to show cause why he should not be disciplined

where he previously has been disbarred from practice in any

State.).

A42

The October 31st Order set a completion date for

the pre-trial preparation required by the September 11th

Order. Respondent failed in substantial part to meet the

deadline, which caused the final pretrial to be concluded

the following morning. Respondent’s noncompliance was

not the result of a simple failure to pay attention or

to give proper regard to the pre-trial Order.

Initially, respondent explained that he simply misread

the completion date. Qualified by the statement that it

was no offered as an excuse, respondent also explained

upon inquiry of the trial judge that his ability to comply

was hampered by a medical condition and treatment. Also,

it is clear that respondent’s complete lack of prior exposure

to the stringently enforced and legitimately detailed local

pre-trial requirements beget the problems encountered.

Central to specification no. 1 is the allegation that

respondent “advised the Court that he had disregarded

the Court’s Order of September 11, 1978.” But this was

not the case. At no time during the final pre-trial was

the trial court so advised by respondent. The burden

of proof has not been met relative to the charge that

deliberate disregard on the part of respondent caused the

delay of the pre-trial proceedings. It is important to note,

however, that respondent did not give prior notice of his

inability to comply.

B.

Behavior Demeaning Witnesses and Improperly In-

fluencing Jury: Specifications Nos. 2, 3, 5,6, 11, 12,

13, 17, 19, 20

Much of respondent’s behavior toward witnesses and

conduct in front of the jury is memorialized in the tran-

script of the trial in Ford v. Kinzel. Additionally, this

Court received testimony from two attorneys representing

A43

plaintiff Ford and an attorney who was at that time em-

ployed as a law clerk by the trial judge and present

during a majority of the Ford trial.

Prior to opening statements, counsel were instructed

by the trial judge to extend every courtesy to the wit-

nesses. Counsel were directed not to incorporate sugges-

tions or innuendo into their questions. Counsel were also

cautioned not to engage in expressions indicating disbelief

or other emotional displays as the result of any answer

elicited from a witness. Answers by witnesses were not

to be interrupted. The instructions summarize the trial

court’s local rules on courtroom procedure.

Contrary to these initial instructions and continued

subsequent admonitions, respondent consistently projected

a hostile demeanor toward both adverse and ostensibly

neutral witnesses. His examination of these witnesses was

generally conducted with modulating tonal inflections, fa-

cial expressions, and gesticulations that often conveyed

sarcasm and disbelief. He often interrupted the responses

given by witnesses. Many of his questions were argumen-

tative and bellicose in content and excessively vociferant

in delivery.

The subject "natter of many of respondent’s questions

had no legitimate evidentiary basis. These questions

lacked material probative value and served only to dis-

parage inexcusably the witness.

For example, respondent asked plaintiff whether her

purpose in discussing the housing incident with her

daughter was to arouse her children to dislike Whites.

Respondent also attempted to insinuate, without material-

ity or relevance to the issues joined in the case, that

plaintiff was having marital problems. Respondent also

pursued without foundation a line of questioning intimating

A44

that plaintiff was not leading a good Christian life because

she didn’t pay her bills in a timely fashion. Similarly

pursued without foundation and through innuendo was the

role of plaintiff's attorney relative to the medical prescrip-

tion for Valium she received. Respondent accused plain-

tiff of suborning perjury and accused plaintiff and her

attorney of conspiracy to defraud.

Even after the trial judge had admonished respondent

that there was no inconsistency between plaintiff’s direct

testimony and her affidavit filed with the complaint, he

persisted in attempting to characterize her testimony as

inconsistent. Deposition testimony was utilized in a man-

ner that distorted its content and projected and illusion

of inconsistency.

At one point a witness was asked, without a scintilla

of materiality, whether she was married to the man she

was living with. The calculated manner in which respon-

dent consistently framed questions with innuendo and prej-

udicial remarks ultimately resulted in a finding of con-

tempt by the trial judge. On two occasions these abusive

tactics compelled the trial judge to cut off respondent’s

examination,

The trial transcript, supplemented by the testimony

of others present during the proceedings, attests to the

outrageously demeaning and contemptuous attitude respon-

dent displayed toward many of the witnesses. This con-

duct persisted in direct violation of the trial court’s initial

warnings and subsequent admonitions to cease.

Respondent’s gesticulations during judicial rulings,

side bar conferences, and examination of witnesses were

calculated to prejudice the jury. Facial expressions visible

to the jury were used by respondent to convey disbelief

or dissatisfaction with bench rulings. At side bar insub-

A45

stantiate accusations of perjury, deceit, and conspiracy

were wielded by respondent at plaintiff, witnesses, and

plaintiff's counsel. In examining witnesses, respondent

often depicted prior testimony, exhibits, and depositions

in a manner calculated to create the illusion of impeach-

ment.

The volume with which these factitious outbursts were

often delivered made many of the remarks audible to

the jury. Thus, the trial judge frequently directed respon-

dent to lower his voice. On one occasion a motion for

mistrial was made before the jury. This outburst resulted

in another citation for contempt issued by the trial judge

against respondent.

There were other occasions where respondent’s argu-

mentative outbursts directed at witnesses and the trial

judge were either made in front of the jury or at a volume

clearly audible to the jury. These outbursts were directly

responsible for at least one of the times the trial judge

was forced to send the jury out of the courtroom. Again,

respondent was cited for contempt of court. It is clear

that respondent consciously engaged in a trial strategy

designed to draw upon theatrics and the improper use

and misrepresentation of evidence to prejudice the jury.

Without evidentiary foundation, respondent consistently

expressed his personal opinion that the lawsuit was a fabri-

cation and that the witnesses were deceitful.

C.

Disrespectful Remarks to the Judge and Refusal to Com-

ply with Proper Court Procedures and Orders: Spec-

ifications Nos. 4, 5, 6, 7, 8,9, 10, 12, 13, & 14

In addition to the acts of misconduct directed toward

the witnesses and jury, respondent violated a number of

the other local rules of the trial court. A local order on

A46

courtroom procedure is placed at each counsel table. Also,

copies are made available for inspection elsewhere in the

courthouse during business hours. A number of items

were reiterated by the trial judge immediately prior to

opening statements.

The trial judge emphasized the following local rules

of courtroom procedure: Interrogation of witnesses should

be conducted with counsel positioned behind the lecturn.

Interposing objections requires that counsel rise and simply

state the objection without proffering any reason or ex-

planation. Support for objections could be placed on the

record by requesting permission to approach the bench.

The issue raised through an objection is concluded upon

the trial court’s ruling, and counsel shall not thereafter

persist in arguing the matter.

During the interrogation of witnesses, respondent often

left the lecturn without the permission of the trial judge.

It was not an infrequent occurrence for the trial judge

to instruct respondent either to be seated or to return

to the lecturn. The trial judge described respondent’s

excessive movement as “roaming around” the courtroom.

Many of respondent’s objections were accompanied

by attempts to proffer spontaneous arguments in support

thereof. Also, respondent failed to respect the finality

of the rulings issued by the trial judge, and accused the

trial judge of prejudicing his client’s case. Upon receiving

an adverse ruling, respondent would on occasion become

overly argumentative. There was an exchange on an evi-

dentiary issue where respondent defiantly asserted that he

“would like to try my case my way.” The trial judge

immediately repeated his ruling that the area of inquiry

was improper. Respondent then replied: “How do you

know?”

A47

Respondent submitted his exhibits in an unbound and

unmarked stack of disorganized materials. Exhibits were

not accompanied by the required index. This total dis-

regard for the local rules made it impossible for respondent

to refer to his exhibits other than by a general description.

At times respondent had to rely upon the trial court’s

direction and indulgence in locating copies of exhibits.

Respondent’s challenge to the patience of the trial

judge rose to the level of derision. Especially with re-

spect to evidentiary rulings, respondent refused to adhere

to the trial court’s admonitions. Avenues of inquiry were

pursued notwithstanding the court’s explicit orders that

the subject was outside the legitimate scope of examina-

tion. For example, respondent attempted to continue the

interrogation of plaintiff on the subject of her previous

residence in direct violation of the trial court’s order to

move on to another line of inquiry. When the trial court

again instructed respondent to go to another subject, he

requested that the judge excuse the jury so he could pursue

further argumentation.

There is also ample evidence in the record that re-

spondent lacks the basic working knowledge of the Federal

Rules of Evidence and the Federal Rules of Civil Proce-

dure, which is quintessential to the competent discharge

of a federal practitioner’s professional responsibilities.

During the direct examination of defendant’s first witness,

respondent interrupted the interrogation, approached the

bench, and renewed a previously overruled motion for a

directed verdict.

Included among the other more egregious examples of

respondent’s lack of competency in these fundamental

areas of trial practice are the following: Respondent

demonstrated an inability to frame appropriate questions

on either direct or cross examination. Most of his ques-

A48

tions on direct examination were leading. Respondent at-

tempted to pose leading questions to witnesses called dur-

ing defendants’ case without laying the appropriate founda-

tion that the witnesses were hostile. He attempted to

cross examine witnesses on subjects beyond the scope of

direct examination and unrelated to credibility. Attempts

were made without foundation to use deposition testimony

to impeach. These attempts were generally improper be-

cause either the deposition testimony was not inconsistent

or the witness was not first interrogated on the subject

matter.

D.

Delay of the Trial Proceedings Specifications Nos. 7, 8,

9, 10, 15, 16, 18, & 19

Many of the acts of misconduct discussed above re-

sulted in a substantial delay and waste of judicial resource.

Respondent’s failure to comply with the trial court’s order

regarding the preparation of exhibits for trial resulted

in a substantial loss of courtroom time. Random searches

through the courtroom for exhibits, which respondent

could refer to only by description, were not an infrequent

occurrence. His treatment of witnesses and demeanor

before the jury required the trial judge to send the jury

out so that the proper admonitions could be given. Addi-

tional court time was expended for the three times the

trial judge interrupted the proceedings to sanction respon-

dent for contumacious conduct.

Much time was consumed by respondent's persistence

in making arguments to the bench on issues that were

either exhausted or conclusively resolved by a ruling of

the trial judge. Respondent’s lack of knowledge in some

of the most basic areas of trial practice and procedure

compelled the trial judge to halt the proceedings on a

A49

number of occasions. Respondent continued to pursue

repetitious and improper lines of inquiry contrary to the

rulings and admonitions of the trial judge. The courtroom

conduct of respondent extended what should have been

a two day trial into a five day affair.

E.

Medical Disabilities

The deposition testimony of Fred Adelstein, M.D. an

ear, nose, and throat specialist, was received into evidence

without objection by the United States Attorney.® Based

upon an examination, Dr. Adelstein offered his medical

opinion that respondent has a hearing loss for the spoken

word at fifteen feet. Because he was unable to treat the

problem, Dr. Adelstein advised respondent to go to the

Cleveland Clinic for an audiogram to determine whether

a hearing aid would remedy his hearing loss. No evidence

was offered to rebut the medical testimony of Dr. Adelstein.

Respondent complained of a hearing impediment dur-

ing both the Ford case and the within proceedings. No

explanation, however, has been offered for respondent’s

apparent failure to seek corrective treatment sufficient to

satisfy the demands of trial practice. There is no indica-

tion that respondent heeded Dr. Adelstein’s advice to

undergo further examination to determine the permanency

of the hearing loss and whether a corrective device would

mitigate his hearing impediment.

6. On Tuesday, February 26, 1980, during the trial proceed-

ings commenced before this Court in the instant case, respon-

dent offered the deposition of Dr. Adelstein that was filed on

February 25. After hearing the oral arguments of the parties

on the issue of the admissibility of the deposition, the Court re-

quested written notice from the United States Attorney advis-

ing the Court as to what action the government proposed to take.

The Court having been advised of no action the government

seeks to take, the deposition shall be received pursuant to Fed R.

Civ. P. 32(a) (3) (E).

A50

Thus, the Court finds that respondent suffers from

a hearing impediment that makes it physically impossible

for him to function unassisted as a trial attorney. In light

of the demands litigation places upon the attorney, a

hearing loss for the spoken word at fifteen feet is a phys-

ically disabling condition.

Testimony from Stuart F. Younger, M.D., was adduced

on the issue of respondent’s state of mind during the Ford

case. Dr, Younger’s area of specialization includes the

psychological reaction of drugs used to treat illness.

At the time of the Ford trial respondent was suffering

from and under treatment for Hodgkin’s disease. He began

chemotherapy on December 15, 1977, which continued until

his last treatment on December 17, 1978. The treatment

protocol consisted of the cyclic ingestion of four different

drugs. Included in the cycle was the daily ingestion of

high dosages (60 mg.) of Prednisone for a ten day period.

Prednisone is a member of the glucocorticoid class

of drugs. In high dosages this class of drugs has a 40%

to 80% incidence psychological disturbances in patients.

The side effects include: euphoria, insomnia, mood swings,

personality changes, and severe depression.

Dr. Younger conducted an investigation upon respon-

dent’s request to form a medical opinion of the effect of

chemotherapy on respondent’s behavior during the Ford

trial. Respondent’s medical records for hospitalization and

outpatient chemotherapy treatment were reviewed by Dr.

Younger. Three family members and an employee of

respondent were briefly interviewed. Dr. Younger per-

formed a one hour psychiatric interview and examination

of respondent. Also, a copy of the twenty specific acts

of misconduct filed by the United States Attorney was

reviewed.

A5l

Based upon his investigation, Dr. Younger concluded

that respondent underwent significant psychological dete-

rioration following his diagnosis of Hodgkin’s disease,

which was directly attributable to (1) emotional stress

accompanying the diagnosis of a malignancy and (2) the

direct physical effects on the brain and nervous system

by Prednisone. Although these two factors were identified

as contributing to respondent’s courtroom behavior, the

psychological effect of the former, if any, was not accounted

for in Dr. Younger’s medical opinion. Nonetheless, Dr.

Younger concluded the medical evaluation with his diag-

nostic impression that the behavioral and intellectual

problems as indicated in the charges of misconduct were

a direct result of respondent’s chemotherapy for cancer.

Dr. Younger’s medical opinion was the product of

comparative analysis. He garnered information relative

to respondent’s behavior before and after chemotherapy.

Dr. Younger concluded that during the course of chemo-

therapy respondent underwent a dramatic change in per-

sonality. Dr. Younger’s investigation revealed that respon-

dent manifested contentious and irascible behavior prior

to chemotherapy, and that this behavior became somewhat

exaggerated after treatment for cancer began. He further

concluded that the change was directly attributed to side

effects of Prednisone. Dr. Younger admitted that his

opinion of the cause of the behavioral problems would

change if there was evidence of similar behavior on the

part of respondent prior to the diagnosis of Hodgkin’s

disease.

The Court finds the medical opinion that respondent’s

behavioral problems were a direct result of his chemo-

therapy for cancer to be inconclusive. The only basis

for the evaluation of respondent’s courtroom behavior

during the Ford case is respondent’s selfserving description

A52

of his professional conduct and the specifications charged

by the United States Attorney. Dr. Younger did not inter-

view anyone present during the Ford trial and did not

consider the testimony before this Court by witnesses

present during that trial. Nor did he review any portion

of the transcript of the proceedings in the Ford case. Re-

spondent’s family members and his employee were only

briefly interviewed for a period of fifteen minutes each.

Also, the factor of emotional stress accompanying the diag-

nosis of Hodgkin’s disease was identified but not otherwise

taken into account. This seriously detracts from Dr.

Younger’s opinion on the cause of respondent’s behavioral]

disorders.

Therefore, the underlying facts considered by Dr.

Younger are insufficient to support his initial determina-

tion that there was a substantial deterioration of respon-

dent’s behavioral patterns directly caused by chemo-

therapy treatments.

Additionally, Dr. Younger candidly admitted that his

medical opinion on the effect of the chemotherapy would

change if it were shown that respondent manifested the

same type of behavioral patterns prior to treatment. In

Levy v. Stokes,’ Case No. 884,045 (Court of Common

Pleas for Cuyahoga County, Ohio, filed 1970), respondent

represented a number of policemen in a negligence suit

for personal injury. The case was tried before a jury,

commencing on April 28, 1977, and concluding on May 18,

1977. These proceedings were completed prior to respon-

dent’s chemotherapy treatments.

The transcript of the Levy trial evinces a courtroom

demeanor on the part of respondent comparable to that

7. The 2,542 page transcript was offered by the United

States Attorney and received by the Court solely as rebuttal

evidence to the medical testimony of Dr. Younger.

A53

projected at the Ford trial. The transcript is replete with

examples of respondent’s argumentative attitude toward

the evidentiary rulings and other orders of the trial judge.

During exchanges between counsel and the trial judge,

respondent persevered in making the last and sometimes

disrespectful remark to the bench. At one point the

court requested respondent to be patient for a moment

while the trial judge placed two questions before a wit-

ness. He responded: ‘Well, I’ve got lots of time, as

long as I have an opportunity to be heard.” Respondent

also asserted that he was not bound by the orders of

the trial court. A myriad of problems attesting to re-

spondent’s unfamiliarity with the rules of evidence and

trial procedure surfaced throughout the Levy trial.

Based upon the trial transcript in the Levy case, it

is clear that there is little significant difference between

respondent’s trial demeanor prior to chemotherapy and

his conduct in the Ford trial. The presence of a marked

change in behavior constituted the crucial underlying

factual predicate relied upon by Dr. Younger in reaching

his medical opinion on effects of Prednisone on respon-

dent. The similarity in respondent’s behavioral patterns

exhibited in the Ford and Levy cases strips Dr. Younger’s

medical opinion of probative value.

IV

Violations of the ABA Code of Professional

Responsibility.

It is the responsibility of the federal courts to take

disciplinary action against any attorney “who has en-

gaged in conduct inconsistent with the standard expected

of officers of the Court.” In re Isserman, 345 U.S. 286,

289 (1953). The conflict inherent in every disciplinary

proceeding, and therefore the overriding issue, “is the

A54

public interest and the attorney’s right to continue to

practice a profession imbued with public trust.” In re

Echeles, supra at 350.

A.

Legal Defenses

Respondent interposes a number of legal arguments

challenging the propriety of enforcing disciplinary sanc-

tions against respondent for his actions in the Ford case.

Each argument touches upon the tension involved in

weighing the public interest against the attorney’s right

to continue his chosen profession,

First, respondent asserts that his trial conduct amounts

to no more than a good faith attempt to zealously press

his client’s case. See ABA Canons of Professional Re-

sponsibility No. 7.° It is beyond peradventure that the

uninhibited ability of an attorney to draw upon all rea-

sonable, good faith measures to advance the client’s in-

terests is essential to the fair administration of justice.

In re McConnell, 370 U.S. 230, 236 (1962). “An indepen-

dent judiciary and a vigourous, independent bar are both

indispensable parts of our system of justice.” Id.

That an attorney must be allowed to engage in vig-

orous advocacy cannot, however, justify all conduct de-

signed to protect the client’s interests. In re Dellinger,

461 F.2d 389, 398 (7th Cir. 1972). The right to press

an issue persistently extends only to the point that a

ruling is made by the court. No matter how unfounded

the ruling may appear to the attorney, neither resistance

nor insult to the court can be tolerated once the issue

is preserved for appeal. See Sacher v. United States,

8. Canon 7 provides: A lawyer should represent a client

zealously within the bounds of the law.

A55

343 U.S. 1, 9 (1952); United States v. Schiffer, 351 F.2d

91, 94 (6th Cir. 1965). Any other rule would subject

the courts to the temperament of the attorneys and at

the cost of the orderly administration of justice. See

ABA Ethical Consideration of Professional Responsibility

No. 7-37. Respondent’s persistence in arguing issues be-

yond the trial court’s instructions, rulings, and admoni-

tions transgresses the bounds of zealous advocacy.

Second, respondent asserts that the within disciplinary

action is commenced against him solely to vindicate the

trial court’s local rules of etiquette and decorum. Respon-

dent’s acts of misconduct violate established rules of pro-

fessional conduct as well as the trial court’s local rules

and his argument is therefore without merit. Furiher-

more, “[ijt is essential to the proper administration of

. . . justice that dignity, order, and decorum be the hall-

marks of all court proceedings in our country.” Illinois

v. Allen, 397 U.S. 337, 343, rehearing denied, 398 US.

915 (1970).° The trial court’s local rules are legitimately

designed to accommodate the orderly administration of

justice. See ABA Ethical Consideration of Professional

Ethics No, 7-37.

Third, respondent contends that acts of misconduct

occurring during the course of a single trial are insuffi-

cient grounds to support disciplinary action. There may

be some degree of validity to this argument where the

disciplinary action is brought upon a single act of forensic

9. But cf. N. Dorsen & L. Friedman, Disorder in the Court

138 (1973):

Some of [the specific local rules for the proper conduct

of a lawyer in court] are common sense, others are quite

petty. They are suggested rules of etiquette rather than

definitive rules of conduct, and therefore should be considered

an ideal standard of how a lawyer should behave in court

rather than a minimum code of conduct whose violation may

lead to a contempt citation or disciplinary action.

A56

misconduct at trial, as opposed to several unprofessional

acts during the course of a single trial. Similarly, acts

of misconduct confined to one trial may not constitute

a fair basis for disbarment but can certainly warrant a

less severe sanction. See Kentucky State Bar Association

v. Taylor, 482 S.W. 2d 574 (Ky. 1972).

Beyond these concerns, respondent’s argument lacks

persuasiveness, The most flagrant of respondent’s acts

of misconduct drew three separate citations for contempt

by the trial judge. ‘Frequent and repeated punishment

for contempt of court indicates a lawyer is not fit to

practice.” Id. at 584.

Furthermore, only in the most egregious case of

delay or contumacious conduct can the court resort to

dismissal of the case in order to exercise control over

the litigation process, See Silas v. Sears, Roebuck & Co.,

Inc., 586 F.2d 382, 385 (5th Cir. 1978). “Absent this

showing, an order of dismissal is an abuse of discretion;

the court is limited to lesser sanctions designed to achieve

compliance.” Carter v. City of Memphis, Tennessee, No.

79-1059, slip op. at 4 (6th Cir., decided Dec. 29 1980),

Such lesser sanctions include disciplinary action. Silas,

supra at 385 n.3. The unavailability of the disciplinary

sanction for misconduct confined to a single trial would

serve only to limit further the trial court's ability to main-

tain control over the litigation process.

Finally, respondent claims that his poor state of

health excuses his behavior during the Ford trial. For

the reasons stated above, Dr. Younger’s medical opinion

concerning the psychological effects of chemotherapy is

unconvincing. Moreover, the existence of a hearing im-

pediment is wholly unrelated to much of respondent's

courtroom behavior, Thus, there is no factual support

A57

for respondent's initial claim that his courtroom behavior

is attributable to poor health,

Assuming arguendo that respondent had established

a causal link between his courtroom behavior and poor

health, the defense that physical or medical disorder

constitutes an excusing condition is without legal founda-

tion. Disciplinary action is not taken against an attorney

to punish acts of misconduct. Rather, the overriding

purpose of such proceedings is the protection of the public

interest. Concomitantly, it is imperative to promote and

maintain public confidence in the judicial system and

legal profession. For this reason, neither physical nor

mental disability can excuse professional misconduct, See

e.g. In re Richard K. Houtchens, 555 S.W. 2d 24 (Mo.

1977); Columbus Bar Association v. Edwards, 11 Ohio St.

2d 171, 173 (1967); Annot., 96 A.L.R. 2d 739, 741 (1964).

B,

Disciplinary Rule 7-106

The Disciplinary Rules of the ABA Code of Profes-

sional Responsibility are mandatory in character and set

the minimum level of professional conduct. Whenever

an attorney’s conduct falls below these minimum stan-

dards, he will be subject to disciplinary action. ABA

Disciplinary Rules of Professional Responsibility No. 1-102

(A) (1).

Disciplinary Rule 7-106(C) prescribes the minimum

standard of professional conduct for courtroom appear-

ances:

In appearing in his professional capacity before a

tribunal, a lawyer shall not:

(1) State or allude to any matter that he has no

reasonable basis to believe is relevant to the case

A58

or that will not be supported by admissible evi-

dence.

(2) Ask any question that he has no reasonable basis

to believe is relevant to the case and that is

intended to degrade a witness or other person.

(4) Assert his personal opinion as to the justness

of a cause, as to the credibility, of a witness,

as to the culpability of a civil litigant, or as to

the guilt or innocence of an accused; but he

may argue, on his analysis of the evidence, for

any position or conclusion with respect to the

matters stated herein.

(5) Fail to comply with known local customs of

courtesy or practice of the bar or a particular

tribunal without giving to opposing counsel

timely notice of his intent not to comply.

(6) Engage in undignified or discourteous conduct

which is degrading to a tribunal.

(7) Intentionally or habitually violate any established

rule of procedure or of evidence.

Respondent intentionally pursued the following pat-

terns of misconduct throughout the Ford trial, which

were designed and calculated to disrupt the orderly reso-

lution of the case: (1) behavior demeaning to witnesses

and prejudicial to the jury, (2) disrespectful remarks to

the judge and refusal to comply with proper courtroom

procedures and orders, and (3) delay of the trial pro-

ceedings. Based upon the specific acts of misconduct,

as fully discussed above, that disrupted the orderly reso-

lution of the Ford case, the Court hereby finds that

respondent violated Disciplinary Rule 7-106(C) of the

ABA Code of Professional Responsibility.

A59

Specifically, he continued to argue matters that could

not be supported by admissible evidence; he prodded

into areas that were irrelevant to the case and intended

solely to degrade witnesses; he asserted his personal

opinion that the case was fabricated and that the witnesses

were deceitful; he failed to comply with the trial court’s

local rules without giving notice of his intent not to

comply; he was discourteous to the trial judge; and he

habitually violated the Federal Rules of Civil Procedure

and the Federal Rules of Criminal Procedure.

C.

Mitigating Circumstances

In tailoring the appropriate sanction for respondent's

unprofessional conduct, the following factors are relevant.

Respondent is over 70 years old and has practiced for

over 20 years, His acts of misconduct are confined to

a single trial. The Ford case was respondent’s first court

appearance in federal court. He has never been the

subject of any disciplinary proceeding prior to the within

action. Although these factors cannot excuse violations

of the professional standards of conduct, they are consid-

erations important to determining the severity of the

sanction.

V.

Conclusion

Accordingly, it is hereby ordered that Milton Philip

Schulman shall not be permitted to practice in the United

States District Court for the Northern District of Ohio

or before any officer thereof as an attorney or to com-

mence, conduct, prosecute or defend any action, pro-

ceeding or claim in which he is not a party concerned

A60

unless and until such time as he satisfies the following

conditions and complies by the following restrictions:

1. Respondent shall forthwith subscribe to an oath

of affirmation to this Court, and filed with the

Clerk, that he will maintain an abiding commit-

ment to conduct himself in a manner commen-

surate with the ABA Code of Professional Re-

sponsibility and in accordance with the local

courtroom rules of all the federal judges in the

Northern District of Ohio,

2. Respondent shall satisfactorily demonstrate

through sworn affidavit to this Court, and filed

with the Clerk, that he has achieved a proficiency

in and understanding of the Federal Rules of Civil

Procedure, the Federal Rules of Criminal Proce-

dure, the Federal Rules of Evidence, the Local

Civil Rules for the Northern District of Ohio,

and the ABA Code of Professional Responsibility.

3. Upon duly executing and filing the aforementioned

affidavits, respondent's practice in this District

shall be restricted as follows:

A. Respondent shall first attend and observe six

contested testimonial trials, at least three of

which must be jury trials, in the United States

District Court for the Northern District of

Ohio. Respondent’s attendance and observa-

tion shall be certified through sworn affidavit

to this Court, by an attorney of record partic-

ipating in the trial, and filed with the Clerk.

B, Thereafter, in view of respondent's hearing

impediment and his unprofessional courtroom

conduct in the Ford trial, he shall not appear

without co-counsel in any status call, pretrial,

A61

arraignment, sentencing, trial, or other court-

room proceeding in the United States District

Court for the Northern District of Ohio.

4, Respondent’s name shall remain on the roll of

attorneys admitted to practice in this District only

so long as he conducts himself in accordance with

both the aforementioned restrictions and the ABA

Code of Professional Responsibility.

IT IS SO ORDERED,

/s/ Leroy J, Contre, Jr,

U.S, District Judge

Appendix

The United States Attorney charged:

A review of the record discloses that Schulman know-

ingly and wilfully pursued a course of conduct both prior

to and throughout the trial of this cause designed and

calculated to disrupt the orderly resolution of this litiga-

tion, as follows:

1. The final pretrial hearing scheduled for Decem-

ber 11, 1978, pursuant to the Court's Order of October 31,

1978, was required to be aborted and rescheduled because

Schulman, at the hearing, advised the Court that he

had disregarded the Court's Order of September 11, 1978,

and had:

(a) failed to identify, mark and exchange proposed

exhibits with opposing counsel on November 29, 1978,

as ordered by the Court;

(b) failed to inform opposing counsel on Novem-

ber 29, 1978, of testimony intended to be introduced at

trial by way of deposition as ordered by the Court;

A62

(c) failed to file with the Court by not later than

December 11, 1978, a sequential index listing all documen-

tary and non-documentary exhibits intended to be used

at trial as ordered by the Court;

(d) failed to identify, mark and file with the Court

and opposing counsel by not later than December 11, 1978,

exhibits intended to be used at trial as ordered by the

Court;

(e) failed to consult with opposing counsel prior

to December 11, 1978, to eliminate duplicate exhibits;

(f) failed to prepare and file with the Court prior

to December 11, 1978, a witness list as ordered by the

Court;

(g) failed to inform the Court and opposing counsel

by not later than December 11, 1978, of an intent to

introduce testimony by way of deposition as ordered by

the Court;

(h) generally, intentionally and deliberately ignored,

without reason, every pretrial Order of the Court in-

tended to facilitate an orderly and efficient trial,

2. Throughout the opening and closing arguments

and interrogation of witnesses by opposing counsel, Schul-

man persisted in calculated efforts to distract the atten-

tion of the Court and the jury by:

(a) unnecessary and noisy activity at counsel table

and roaming about the courtroom;

(b) standing at counsel table;

(c) shuffling papers, books, and documents;

(d) conferring with his clients in tones audible to

the judge and jurors; and

A63

(e) repeatedly ignoring the Court’s requests and in-

structions to cease and desist in this misbehavior.

3. The respondent persisted in advancing comments,

statements and arguments at side-bar conferences in au-

dible tones calculated to reach the jury, accompanied

by facial expressions and gestures intended to be observed

by the jury, in disregard of the Court’s requests, admoni-

tions, and orders to refrain from such conduct,

4. The respondent persisted in directing leading

questions to his own defense witnesses, indifferent to

the requirements of the Federal Rules of Evidence and

the repeated requests and instructions of the Court,

5. The respondent persisted in framing questions,

both on direct and cross-examination, incorporating sug-

gestions, innuendos, and/or insinuations accompanied by

vocal inflections in a manner calculated to influence or

prejudice the jury, ignoring the Court’s numerous re-

quests, admonitions and orders to cease and desist.

6. The respondent persisted in interrupting wit-

nesses, thereby precluding them from completing answers,

repudiating the Court’s requests, admonitions and orders.

7. The respondent persisted in interrupting opposing

counsel in his direct and cross-examination of witnesses

by interposing objections before questions were completed,

in disregard of the Court’s requests, admonitions, and

orders to Schulman to state his objections in the proper

manner and at the appropriate time.

8. The respondent persisted in asking multiple ques-

tions in the form of a single interrogatory to the confusion

of witnesses, rejecting the Court’s requests, admonitions

and orders to proceed in a proper manner,

A64

9. The respondent persisted in pursuing repetitious

avenues of inquiry, despite the Court’s numerous in-

structions to refrain from such practice.

10. The respondent persisted in stating or alluding

to matters obviously irrelevant to the cause, or matters

which could not be supported by admissable evidence,

in disregard of the Court’s requests to comply with the

*Federal Rules of Evidence and the rules of the court.

11. The respondent persisted in pursuing avenues

of inquiry having no basis in admissable evidence and

designed solely to embarrass and demean witnesses and

to influence and prejudice the jury.

12. The respondent demeaned and disparaged the

plaintiff and her witnesses by incorporating into ques-

tions conclusory statements and suggestions of his per-

sonal opinion as to the justness of the cause, the credibility

of witnesses, and the culpability of the plaintiff and her

witnesses, and by conducting his interrogation in a loud

and provocative manner accompanied by expression and

gestures, ignoring the Court’s repeated requests, admoni-

tions, and orders to conduct courteous, proper and pro-

bative examination of witnesses.

13. The respondent persisted in attempting to en-

gage in unnecessary dialogue with witnesses, opposing

counsel, and the Court in the presence of the jury, in

disregard of the Court’s requests, admonitions and orders

to cease and desist.

14. The respondent persisted in advancing provoc-

ative arguments following rulings by the Court upon

objections, despite the Court’s repeated instructions to

cease and desist.

15. The respondent exhibited and admitted complete

unpreparedness and disorganization, as well as unfamil-

A65

iarity with identified exhibits and references thereto,

resulting in inordinate delays in the trial and the necessity

of conducting voir dire examination of several defense

witnesses.

16. The respondent repeatedly advanced specious

motions and arguments, unsupported by legal authority,

and demanded that the Court respond thereto. For ex-

ample, Schulman purported to reserve presentation of

voir dire questions to the jury panel until the conclusion

of all the evidence; he requested a directed verdict upon

concluding direct examination of his first defense witness

and prior to cross examination; he moved to instruct the

jury that the standard of proof in 42 U.S.C, §1981 cases

was proof beyond a reasonable doubt, rather than a pre-

ponderance of the evidence; and he steadfastly argued

that equitable and declaratory relief, as distinguished

from damages, could properly be awarded by a jury rather

than the Court.

17, The respondent engaged in factitious outbursts

in a loud and bellicose manner calculated to prejudice

the jury, such as his irascible demands for a mistrial

in the presence of the jury, and his agitated demand

that the jurors be ordered from the courtroom so that

he could present additional arguments and motions.

18. Schulman fell asleep during the lengthy voir

dire examination of the plaintiff's deposition, prompted

by his untimely demand to read the testimony to the

jury.

19. The respondent intentionally misread and mis-

quoted the deposition of a witness, David Gelzer, during

Gelzer’s voir dire examination, in an effort to embarrass

the witness and mislead the Court.

A66

20. Schulman’s continuous provocative outbursts, and

quarrelsome interruptions of witnesses, the Court, and

opposing counsel necessitated repeated removal of the

jurors from the courtroom in order to accommodate his

agitated emotionalism and to avoid contamination of the

jury.