Opposition — Stein v. Gagliardo

Office - Supreme Court, U.S.

FILED

MAY 17 fas4

No. 83-1709

ALEXA DO att A

IN THE vas

Supreme Court of the United States

OCTOBER TERM, 1983

SHELDON STEIN,

Petitioner,

VS

ANGELO J. GAGLIARDO,

Respondent.

== =

ON \ PE TITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

ANGELO J. GAGLIARDO

Disciplinary Counsel for the

Supreme Court of Ohio

Counsel of Record

CARL J. CORLETZI

Office of Disciplinary Counsel

Staff Counsel

Office of Disciplinary Counsel

175 S. Third St., Suite 280

Columbus, Ohio 43215

(614) 461-0256

COUNSEL FOR RESPONDENT

MIDWEST L AW PRINTERS AND PU BLISHERS, INC., Columbus, Ohio 43216

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...............

STATEMENT OF THE CASE .............

ARGUMENT IN OPPOSITION TO

GRANTING CERTIORARI .............

ETS cade sspescccosccccessccs

CER fers Ale OF SERVICE .............

APPENDICES:

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED............

DISCIPLINARY RULE 1-102 OF THE

OHIO CODE OF PROFESSIONAL

8 eee

DISCIPLINARY RULE 2-102 OF THE

OHIO CODE OF PROFESSIONAL

EEE coccbscescessccses

OHIO CONSTITUTION ARTICLE IV SEC

Y Perr’...

TABLE OF AUTHORITIES

Cases: Page

Cleveland Bar Association v. Pleasant,

167 Ohio St. 324, 148 N.E. 2d 493 (1958) ............ 4

Coogan v. Cincinnati Bar Association,

5d Fe Rs Seth cceessbecceceervesec 3

Middlesex County Ethics Committee v.

Garden State Bar Association, 457 U.S. 423

1G2S. Ct. 2515, 73 L. BG. 26 L1G CISSZ) «wc coves Lede

Ohio State Bar Association v. Weaver,

41 Ohio St. 2d 97, 322 N.E. 2d 665 (1975) ............ 4

Younger v. Harris, 401 U.S. 37, 91 S. Ct.

Pes BF ts Es TE oc cba vue vecsveseces fee

Constitution and Rule Provisions

Disciplinary Rule 1-102 of Ohio Code of

Professional Responsibility ............cceeeeees 1,2

Disciplinary Rule 2-101 of Ohio Code of

Professional Responsibility..................000058. l

Disciplinary Rule 2-102 of Ohio Code of

Professional Responsibility .................005. ia

Disciplinary Rule 2-103 of Ohio Code of

Professional Responsibility...........ecccceececees l

Disciplinary Rule 2-104 of Ohio Code of

Professional Responsibility. .............cceceeeees l

Disciplinary Rule 2-105 of Ohio Code of

PUOGCRIROMGE TRGHOUEIOUEEY «occ ccacccsccccsccsesnes |

Ohio Constitution Article IV Section2 ................ 3

l

STATEMENT OF THE CASE

On April 25, 1983, Respondent informed Petitioner by let-

ter that Petitioner’s Yellow Pages advertisement and the un-

solicited mailing of the advertisement to Ms. Joanne Knapp

may have violated the Code of Professional Responsibility.

April 25, 1983 letter is reproduced at page A-19 in Peti-

tioner’s Appendix. Further communications occured be-

tween Petitioner and Respondent regarding compliance with

the Code of Professional Responsibility on May 5, 1983,

May 16, 1983, June 1, 1983 and June 3, 1983. Letters of

May 5, 16, 1983 and June 1, 3, 1983 are reproduced at pages

A-21 to A-31 in Petitioner’s Appendix.

Prior to responding to the Disciplinary Counsel’s request

to withdraw the offending advertisement, the Petitioner on

June 9, 1983 filed an action for a Temporary Restraining

Order, Preliminary Injunction, Declaratory Judgment and a

Writ of Prohibition in the U.S. District Court Northern Dis-

trict of Ohio Eastern Division. The District court by Order

filed on June 24, 1983 dismissed Petitioner’s action by in-

voking the doctrine of abstention as enunciated in Younger

v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L.Ed 2d 669 (1971)

and Middlesex County Ethics Committee v. Garden State

Bar Association, 457 U.S. 423, 102 S. Ct. 2515, 73 L. Ed 2d

116 (1982). The District Court’s Order is reproduced on

Page A-2 in Petitioner’s Appendix.

Petitioner through numerous communications was well

aware that state disciplinary proceedings were pending and

that filing of a formal complaint would be issued against

Petitioner unless he agreed to withdraw his ad. A formal

complaint was filed by Respondent before the. Board of

Commissioners on Grievances and Discipline on July 1,

1983, charging that Petitioner violated Disciplinary Rules

(DR’s) DR 2-103 (A); DR 2-102 (A) (2); DR 2-101 (B) (1);

DR 2-105 (A); DR 2-104 (A) and DR 1-102 (A) (1). DR’s

2-101, 2-103, 2-104, 2-105 are reproduced on Pages A7 to A

i)

ae

16 of Petitioner’s Appendix. DR’s 1-102 and 2-102 are

reproduced on pages A-1 to A-4 of Respondent’s Appen-

dix.

From the District Court’s decision the Petitioner filed an

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

The Court of Appeals rendered its decision at the hearing

from the bench under Rule 19 C which upheld the District

Court’s decision finding that no prejudicial error intervened

in the judgment and proceedings in the District Court and

ordered that the judgment of the District Court be aftirmed.

3

ARGUMENT IN OPPOSITION TO GRANTING

CERTIORARI

A. THE DECISIONS OF THE FEDERAL COURTS

CORRECTLY APPLIED THE ABSTENTION

DOCTRINE SINCE THERE WAS A STATE

JUDICIAL PROCEEDING PENDING.

The Federal District Court correctly applied the principles

of Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed.

2d 669 (1971) and Middlesex County Ethics Committee v.

Garden State Bar Association, 457 U.S. 423, 102 S. Ct.

2515, 73 L. Ed. 2d 116 (1982) and dismissed Petitioner’s ac-

tion. In Younger, supra, the Supreme Court stated a strong

federal policy of federal court abstention from interference

with pending state judicial proceedings, absent extra-

ordinary circumstances. The Federal Courts correctly found

that there was no extra-ordinary circumstances which would

warrant federal intervention.

The Federal District Court in dismissing the action found

that the Ohio disciplinary procedure is a part of the ongoing

judicial proceeding of the Ohio Supreme Court, Coogan v.

Cincinnati Bar Association, 431 F. 2d 1209 (6th Cir. 1970).

The Federal District Court found that the important state

interest is recognized in that the Ohio Constitution grants to

the Ohio Supreme Court the jurisdiction to regulate the ad-

missions of attorneys, enforce discipline among members of

the bar, and in all other matters relating to the practice of

law. Article IV Sec. 2 (B) (1) (g) Ohio Constitution. The

State’s interest is also demonstrated by the fact that the Dis-

ciplinary Counsel, Respondent, of the Supreme Court is

named as a party.

The Federal District Court also determined that the third

criteria was found in that there was an adequate opportunity

in the state proceedings to raise constitutional questions.

Once the Board of Commissioners on Grievances and Disci-

4

pline issues its report, the Supreme Court issues an order to

show cause why the report should not be confirmed. When

timely objections are filed the Court conducts a hearing

wherein the attorney is given an opportunity to raise consti-

tutional challenges. Cleveland Bar Association v. Pleasant,

167 Ohio St. 324, 148 N.E. 2d 493 (1958).

The Federal Court’s decision was affirmed by the Court

of Appeals which found that no prejudicial error intervened

in the judgment and proceedings in the District Court.

Petitioner misstates the type of discipline which may occur

in that Petitioner is subject only to disbarment. Such is not

the case, the discipline that can be recommended by the

Board of Commissioners can be public reprimand, one year

suspension, indefinite suspension or disbarment. Further-

more the disciplinary action could be dismissed by the Panel

or the Board.

Petitioner maintains that a state disciplinary proceeding is

similar to a criminal proceeding, such is not the case. The

proceeding is neither civil nor criminal but is sui generis,

stemming from the inherent power of the Ohio Court to reg-

ulate the practice of law, Ohio State Bar Association v.

Weaver, 41 Ohio St. 2d 97; 322 N.E. 2d 665 (1975).

5

CONCLUSION

Petitioner would ignore and have this Ggurt ignore the

sound reasoning and decision of the Federal*District Court.

The facts are that Petitioner has an adequate remedy in the

state system, that disciplinary action was pending, a formal

disciplinary complaint had been filed. The issue is now moot

and Petitioner can raise his defense including constitutional

challenges in the state proceeding.

The Federal District Court correctly determined that Dis-

ciplinary Counsel’s position and actions were part of an on-

going state judicial proceeding and that therefore abstention

was appropriate under the Younger and Middlesex County

doctrine. The Sixth District U.S. Court of Appeals affirmed

without opinion. The Petition should be denied.

Respectfully submitted,

/§/

ANGELQ J.

Counsel of Réeord

Disciplinary Counsel of the

Ohio Supreme Court

/S/

CARL J. COBLLETZI

Staff Counsel of Office of

Disciplinary Counsel

COUNSEL FOR RESPONDENT

ANGELO J. GAGLIARDO

DISCIPLINARY COUNSEL

OHIO SUPREME COURT

6

CERTIFICATE OF SERVICE

I hereby certify that three copies of the foregoing Brief in

Opposition to Petition for Writ of Certiorari have been served

upon the Petitioner, Sheldon Stein, by forwarding such

copies to the office of his Counsel, Jack M. Schulman, 748

Standard Building, 1370 Ontario Street, Cleveland, Ohio

44113-1727, by United States mail, first class postage pre-

paid, this 15th day of May, 1984. I further certify that all

parties required to be served have been served.

Respondent

A-l

APPENDIX

OHIO CODE OF PROFESSIONAL RESPONSIBILITY

(Excerpts)

DISCIPLINARY RULES

DR 1-102 MISCONDUCT

(A) A lawyer shall not:

(1)

(2)

(3)

(4)

(5)

(6)

Violate a Disciplinary Rule.

Circumvent a Disciplinary Rule through ac-

tions of another.

Engage in illegal conduct involving moral turi-

tude [sic].

Engage in conduct involving dishonesty, fraud,

deceit, or misrepresentation.

Engage in conduct that is prejudicial to the ad-

ministration of justice.

Engage in any other conduct that adversely re-

flects on his fitness to practice law.

DR 2-102 PROFESSIONAL NOTICES, LETTERHEADS

AND OFFICES

(A) A lawyer or law firm shall not use or participate in

the use of professional cards, professional an-

nouncement cards, office signs, letterheads, or simi-

lar professional notices or devices, except that the

following may be used if they are in dignified form:

(1)

(2)

A professional card of a lawyer identifying him

by name and as a lawyer, and giving his ad-

dress, telephone numbers, the name of his law

firm, and any information permitted under DR

2-105. A professional card of a law firm may

also give the names of members and associates.

Such cards may be used for identification.

A brief professional announcement card

Stating new or changed associations or ad-

(3)

(4)

A-2

dresses, change of firm name, or similar mat-

ters pertaining to the professional office of a

lawyer or law firm, which may be mailed to

lawyers, clients, former clients, personal

friends, and relatives. It shall not state bio-

graphical data except to the extent reasonably

necessary to identify the lawyer or to explain

the change in his association, but it may state

the immediate past position of the lawyer. It

may give the names and dates of predecessor

firms in a continuing line of succession. It shall

not state the nature of the practice except as

permitted under DR 2-105.

A sign on or near the door of the office and in

the building directory identifying the law of-

fice. The sign shall not state the nature of the

practice, except as permitted under DR 2-105.

A letterhead of a lawyer identifying him by

name and as a lawyer, and giving his addresses,

telephone numbers, the name of his law firm

associates, and any information permitted

under DR 2-105. A letterhead of a law firm

may also give the names of members and asso-

ciates, and names and dates relating to deceas-

ed and retired members. A lawyer may be des-

ignated ‘‘Of Counsel’’ on a letterhead if he has

a continuing relationship with a lawyer or law

firm, other than as a partner or associate. A

lawyer or law firm may be designated as

‘*General Counsel’’ or by similar professional

reference on stationery of a client if he or the

firm devotes a substantial amount of profes-

sional time in the représentation of that client.

The letterhead of a law firm may give the

names and dates of predecessor firms in a con-

tinuing line of succession.

(B)

(C)

(D)

(E)

A-3

A lawyer in private practice shall not practice under

a trade name, a name that is misleading as to the

identity of the lawyer or lawyers practicing under

such name, or a firm name containing names other

than those of one or more lawyers in the firm, ex-

cept that the name of a professional corporation or

professional association or legal clinic may contain

**P.C.”’ or ‘‘P.A.”’ or similar symbols indicating the

nature of the organization and if otherwise lawful a

firm may use as, Or continue to include in, its name

the name or names of one or more deceased or re-

tired members of the firm or of a predecessor firm in

a continuing line of succession. A lawyer who

assumes a judicial, legislative, or public executive or

administrative post or office shall not permit his

name to remain in the name of a law firm or to be

used in professional notices of the firm during any

significant period in which he is not actively and reg-

ularly practicing law as a member of the firm, and

during such period other members of the firm shall

not use his name in the firm name or in professional

notices of the firm.

A lawyer shall not hold himself out has having a

partnership with one or more lawyers or profes-

sional corporations unless they are in fact partners.

A partnership shall not be formed or continued be-

tween or among lawyers licensed in different juris-

dictions unless all enumerations of the members and

associates of the firm on its letterhead and in other

permissible listings make clear the jurisdictional lim-

itations on those members and associates of the firm

not licensed to practice in all listed jurisdictions;

however, the same firm name may be used in each

jurisdiction.

A lawyer who is engaged both in the practice of law

and another profession or business shall not so indi-

cate on his letterhead, office sign, or professional

(F)

(G)

A

card, nor shall he identify himself as a lawyer in any

publication in connection with his other profession

or business.

Nothing contained herein shall prohibit a lawyer

from using or permitting the use, in connection with

his name, of any earned degree or title derived there-

from indicating his training in the law.

A legal clinic operated by one or more lawyers may

be organized by said lawyer or lawyers for the pur-

pose of providing standardized and multiple legal

services. The name of the law office shall consist on-

ly of the names of one or more of the active practi-

tioners in such organization, and may include the

phrase ‘‘legal clinic’’ or words of similar import.

The use of a trade name or geographical or other

type of identification or description is prohibited.

The name of any active practitioner in such clinic

may be retained in the name of the legal clinic after

his death, retirement or inactivity because of age or

disability, and the name must otherwise conform to

other provisions of the Code of Professional Re-

sponsibility and the Supreme Court Rules for the

Government of the Bar of Ohio. The legal clinic

cannot be owned by, nor can profits or losses be

shared with, non-attorneys or attorneys who are not

actively engaged in the practice of law in such organ-

ization.

A-5

OHIO CONSTITUTION ARTICLE IV SEC. 2

§ 2 The supreme court.

(A) The supreme court shall, until otherwise provided by

law, consist of seven judges, who shall be known as the chief

justice and justices. In case of the absence or disability of the

chief justice, the judge having the period of longest total ser-

vice upon the court shall be the acting chief justice. If any

member of the court shall be unable, by reason of illness,

disability or disqualification, to hear, consider and decide a

cause or causes, the chief justice or the acting chief justice

may direct any judge of any court of appeals to sit with the

judges of the supreme court in the place and stead of the ab-

sent judge. A majority of the supreme court shall be neces-

sary to constitute a quorum or to render a judgment.

(B)(1) the supreme court shall have original jurisdiction in

the following:

(a) Quo warranto;

(b) Mandamus;

(c) Habeas corpus;

(d) Prohibition;

(e) Procedendo;

(f) In any cause on review as may be necessary to its com-

plete determination;

(g) Admission to the practice of law, the discipline of per-

sons so admitted, and all other matters relating to the prac-

tice of law.

(2) The supreme court shall have appellate jurisdiction as

follows:

(a) In appeals from the courts of appeals as a matter of

right in the following:

(i) Cases originating in the courts of appeals;

(ii) Cases in which the death penalty has been affirmed;

(iii) Cases involving questions arising under the constitu-

tion of the United States or of this state.

(b) In appeals from the courts of appeals in cases of felony

on leave first obtained.

A6

(c) Such revisory jurisdiction of the proceedings of admin-

istrative officers or agencies as may be conferred by law;

(d) In cases of public or great general interest, the supreme

court may direct any court of appeals to certify its record to

the supreme court, and may review and affirm, modify, or

reverse the judgment of the court of appeals;

(e) The supreme court shall review and affirm, modify, or

reverse the judgment in any case certified by any court of ap-

peals pursuant to section 3(B)(4) of this article.

(3) No law shall be passed or rule made whereby any per-

son shall be prevented from invoking the original jurisdic-

tion of the supreme court.

(C) The decisions in all cases in the supreme court shall be

reported, together with the reasons therefor. (Amended May

7, 1968.)