Opposition Brief — Smith v. Rolewick

No. 87-1826

yossPH

F, SPANIOl» R

In THE

Supreme Court of the Anited States

Octoser Term, 1987

DOUGLAS WAYNE SMITH,

Petitioner,

Vs.

JOHN C. OMALLEY, Administrator of the Dlinois

Attorney Registration and Disciplinary Commission,

Respondent.

On Petition For A Writ Of Certiorari To The United States

Supreme Court From The Supreme Court Of Illinois

RESPONDENT'S BRIEF IN OPPOSITION

JEROME LARKIN

203 North Wabash Avenue

Suite 1900

Chicago, Illinois 60601

(312) 346-0690

Attorney for Respondent

Of Counsel:

Desoran M. Kennepy, Senior Counsel

for Administrator.

Sheila M. Tuma, Senior law student,

assisted in the preparation of this brief.

Photex — 444 North Wabash Avenue — Chicago 60611 — 321-0223

TABLE OF CONTENTS

‘ PAGE

TABLE. OF ALTHO Bes tc ese nrecnceees Si, iii

RULES OF THE SUPREME COURT OF

ILLINOIS AND ATTORNEY

REGISTRATION AND DISCIPLINARY

&o Fh BAN Gere ei) 4» bP ‘sky 2

pit) Sg Me MR Sr 8) A» Pe a a, S

ARGUMENT:

iL. BACKGFOUNG. .cceccccscccsescscece 4-6

2 Petitioner Has Failed To

Invoke Federal Jurisdiction

Pursuant To

Se ee. BIO ESs 6a sak vk os 7-11

III. Petitioner Has Raised

No Substantial Federal

a Ta veers ree 11-13

IV. Petitioner’s Rights Under

The Fourth Amendment To The

United States Constitution

Have Not Been Violated....... 13-17

eo «el <a ee a ee a 18

APPENDIX... cccccccccccccccccsccecccsccecs

Administrator’s Subpoena

co a a a Appendix 1

Letter To Counsel For

Petitioner Dated

Si BO anc ecsercccssesas Appendix 2

Letter To Petitioner

Dated April 27, 1988....... -Appendix 3

ii

TABLE OF AUTHORITIES

PAGE

Cobbledick v. Unites States,

309 U.S. 323 (4960)4iakiees eee 7

Consolidated Rending Co. v.

Vermon, 207 U.S. 541, 28 S.Ct.

178, 52 L.Ed. 327, (1908)........ 16

Cox Broadcasting Co. v. Cohn,

420 0.8. 469 (1978) i.i054058 8-10

Equitable Life Assurance

Society v. Brown, 187 U.S.

308 (2908) v1 00000505 11

Goldfarb v. Virginia State Bar,

433 0.8. 773 (19703:.4...20000 4, 12

People v. Keefe, 36 Ill.2d, 460

233 N.E. 2Q 144 (1967) .ccccccseccs 17

Mower v. Fletcher, 114 U.S.

127 (1885S) .ccccscsscccsesasssssesess 7

Oklahoma Press Publishing Co. v.

Walling, 327 U.S. 186 (1946)...13-15

In re Primus, 436 U.S. 412 (1978)..12

People v. Reynolds, 350 I11 11,

182 N.E. 754 (1932) ..ccccccces 16-17

Segurola v. United States,

275 U.S. 106 (1927) .cscccccsseses 7-8

ill

In re Teitelbaum, 13 I11l1.2d 586,

150 N.E.2d 873 (1958),

cert. denied, 358 U.S. 881,

rehearing denied,

ge ee ee! ee 4-5, 12

CONSTITUTIONAL AND STATUTORY

PROVISIONS

United States Constitution,

Amendment IV in passim

28 U.S.C §1257(3) (1970).... : ?

I11.Rev.Stat. ch.110A,

eh Coy)” Pee a ae ae 5

I1l.Ann.Stat. ch.110A,

§774, Art. 8, Cannon 1

OE BOG. ccccccccses we seesece 12

3 No. 87-1826

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

DOUGLAS WAYNE SMITH,

Petitioner.

Vs.

JOHN C. O'MALLEY,

Administrator of the Illinois

Attorney Registration and

Disciplinary Commission,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES SUPREME COURT FROM

THE SUPREME COURT OF ILLINOIS

ILLINOIS SUPREME COURT NO. M.R. 4580

ADMINISTRATOR'S NO. 87 CH 303

RESPONDENT'S BRIEF IN OPPOSITION

RULES OF THE SUPREME COURT OF ILLINOIS AND

ATTORNEY REGISTRATION AND DISCIPLINARY

COMMISSION INVOLVED

SUPREME COURT RULE 752. Administrator

...-Subject to the supervision of the

Commission, the Administrator shall:

= Ss

(a) On his own motion, on the

recommendation of an Inquiry Board or at

the instance of an aggrieved party,

investigate conduct of attorneys which

tends to defeat the administration of

justice or to bring the courts or the

legal profession into disrepute...

SUPREME COURT RULE 754.

Compulsory Process

The Administrator, the Inquiry Board

and the Hearing Board are empowered to

take and transcribe the evidence of

respondents, petitioners and any other

attorney or person who may have knowledge

of the pertinent facts concerning any

matter which is the subject of an

investigation or hearing. Upon request

of the Administrator, the respondent, the

petitioner or the inquiry or hearing

boards, the clerk of the Court shall

issue subpoenas ad testificandum or

subpoenas duces tecum. The

Administrator, the respondent or the

inquiry or hearing boards may report to

the court the failure or refusal of a

respondent, petitioner, attorney or any

other person to attend and testify in

response to any subpoena or to produce

the items specified in the subpoena duces

tecum.

=f

SUMMARY OF ARGUMENT

The Petition for Writ of Certiorari

to the Supreme Court of Illinois should

be denied for the following reasons:

First, a denial of a motion to quash

subpoena is not a final judgment or

decree within the meaning of 28 U.S.C.

§1257(3) (1970). In addition, there has

been no final ruling in this proceeding

by the Supreme Court of Illinois.

Without such a ruling, there is no final

judgment from which this court may take

jurisdiction.

Second, the Petitioner has raised no

Significant federal question. The

disciplinary proceedings pending against

Petitioner only involve questions of

state law. Petitioner has asserted a

violation of the Fourth Amendment only to

delay the disciplinary proceedings.

po on

Third, the denial of the motion to

quash the subpoena by the Supreme Court

of Illinois is in accord with the

decisions of the United States Supreme

Court. Subpoenas issued by investigatory

bodies will be upheld as long as the

information sought is reasonable in

scope, relevant to the inquiry and

definite in nature. The subpoena duces

tecum at issue complies with the criteria

outlined by this Court. Thus, the

Supreme Court of Illinois properly denied

Petitioner’s motion to quash the subpoena

duces tecum.

ARGUMENT

I. BACKGROUND

The Supreme Court of Illinois has

inherent authority to regulate the

practice of law. Goldfarb v. Virginia

State Bar, 421 U.S. 773 (1975), In re

=

Teitelbaum, 13 I11.2d 586,

150 N.E.2d 873, cert. denied

358 U.S. 881, rehearing denied, 358 U.S.

923 (1958). Pursuant to that authority,

the court has delegated certain functions

to the Attorney Registration and

Disciplinary Commission to assist it in

regulating the practice. I11.Rev.Stat.

ch. 110A §751-754.

Petitioner, an [Illinois attorney,

represents numerous clients in

dissolution of marriage proceedings.

Since 1980, as a result of charges of

misconduct submitted by # Petitioner’s

clients, over 100 investigations have

been initiated. The charges’ of

misconduct relate generally to

allegations of mishandling funds advanced

to Petitioner by his clients, deceptive

advertising and neglect of client

matters. In furtherance of the

investigations, a subpoena duces tecum

~ =

was served upon Petitioner compelling the

production of certain material. A copy

of this subpoena is set forth in Appendix

One. The scope of the subpoena duces

tecum was limited twice due to

Petitioner’s concerns that compliance

with the subpoena would be too

burdensome. A copy of the letters dated

May 4, 1987 and April 27, 1988 limiting

the scope of the subpoena are set forth

in Appendix Two and Three respectively.

The Administrator’s investigation

into Petitioner’s alleged misconduct is

ongoing. Petitioner seeks only to halt

the orderly progress of the investigatory

proceedings through his petition. Review

by the Supreme Court at this time would

delay the investigation and frustrate the

effectiveness of the attorney

disciplinary system.

jalan

II. PETITIONER HAS FAILED TO INVOKE

FEDERAL JURISDICTION PURSUANT

TO 28 U.S.C. $1257 (3)

This Court has jurisdiction to

review state court action only after the

highest court of the state has rendered a

final judgment or decree. as | -U.8.C.

§1257. A judgment is not final unless a

writ of error terminates the litigation

between the parties on the merits of the

case. Following a final judgment nothing

remains to be done but the entry of the

judgment by the inferior court. See,

Mower v. Fletcher, 114 U.S. 127 (1885).

An order denying a motion to quash a

Subpoena duces tecum is not a final

appealable decision. See, e.q.

Cobbledick v. United States, 309 U.S. 332

(1940). A litigant will not be allowed

to appeal a ruling where the result of

the review would only be to halt the

orderly progress of a cause. See, e.g.,

a

Segqurola v. United States, 275 U.S. 106,

112 (1927).

While this court has recognized

certain exceptions to the final judgment

rule, this matter does not fall within

those exceptions. In Cox Broadcasting

v. Cohn, 420 U.S. 469 (1975), this Court

recognized four categories of cases in

which federal jurisdiction exists even

though there is no final judgment under

Title 28 or the United States Code,

subsection 1257.

The first category includes those

matters in which there are further

proceedings pending in the state court,

but the federal issue is conclusive and

the outcome of the proceeding is

preordained. Because such a case is for

all practical purposes concluded, the

judgment of the state court related to

the federal issue is deemed final. Id.

=

at 479. This exception does not apply to

the present case. The Administrator has

not had a sufficient opportunity to

review the information sought in the

subpoena duces tecum. Until the material

is made available to the Commission, it

cannot be conclusively determined whether

there has been professional misconduct by

the Petitioner. Since the information

and documents have not been subject to

inspection, production of the materials

will not preordain the outcome of the

proceeding.

The second category of cases are

those in which the federal issue requires

a decision regardless of the outcome of

anticipated state court proceedings.

That is, nothing could occur in the state

court proceeding which would foreclose a

decision on the federal issue. Id., at

480. This exception does not apply to

the present case. In the event that the

=

investigations related to Petitioner are

dismissed the alleged constitutional

issue would not need to be addressed.

The third category of cases are

those from which later review of the

federal issue will not be available

because of mootness or res judicata. Id,

at 481. This exception does not apply to

the present case. The Petitioner may

properly raise and preserve

constitutional claims at any time during

disciplinary proceedings.

In the final category are cases in

which a decision on the federal issue

would preclude further litigation in the

underlying cause of action rather than

merely controlling the nature, character

and admissibility of evidence in the

state court proceeding. Id., at 482-483.

This exception does not apply to the

present case. Whether or not the

|

information sought in the subpoena duces

tecum is produced, the Administrator is

not precluded from investigating or

prosecuting Petitioner for various acts

of alleged professional misconduct.

III. PETITIONER HAS RAISED NO

SUBSTANTIAL FEDERAL QUESTION

Mere allegations that a federal

question exists will not confer federal

jurisdiction. Rather, there must be a

real substantive federal question on

which the case turns in order to invoke

the jurisdiction of this Court. See,

Equitable Life Assurance Society v.

Brown, 187 U.S. 308, 311 (1902). A

petition for Writ of Certiorari must be

dismissed if it appears that the federal

question is so devoid of merit as to be

frivolous, or has been foreclosed by a

decision of this court. Id.

This Court has long recognized the

-_ =

authority of the state to regulate its

professions. Goldfarb v. Virginia State

Bar, 421 U.S. 773, W732 23750 Lawyers

have historically been considered

officers of the court, subject to the

Court’s inherent authority. See, e.g. In

re Primis, 436 U.S. 412, 422 (1978); In

re Teitelbaum, 13 I1l1.2d 586, 150 N.E.2d

873, cert. deniea@, 339 U.s. 881,

rehearing denied, 358 U.S. 923 (1958).

The investigations related to

Petitioner are limited to determining

whether he violated the Illinois Code of

Professional Responsibility governing the

conduct of attorneys. Ill. Ann. Stat.

ch 110A, §774, Art. 8, Cannon 1 et seq.

(Smith-Hurd 1985). As such, the only

question involved is that of state law.

No federal statute or provision is ripe

for review.

While Petitioner attempts to invoke

federal jurisdiction by claiming a

= ae

violation of the Fourth Amendment his

claim is specious and has been raised

merely to delay the disciplinary

proceedings. Petitioner has not raised

any genuine federal question, as indeed

none exists.

IV. PETITIONER’S RIGHTS UNDER

THE FOURTH AMENDMENT TO THE

UNITED STATES CONSTITUTION

HAVE NOT BEEN VIOLATED

Assuming arguendo that federal

jurisdiction does exist, it is clear that

Petitioner’s Fourth Amendment rights have

not been violated. The Fourth

Amendment’s protection against unlawful

search and seizure is satisfied when a

subpoena is issued by a body which has

authority to investigate for a lawfully

recognized purpose. Oklahoma Press

Publishing Co. v. Walling, 327 U.S. 186,

(1946). The documents sought must be

definite and relevant to the inquiry.

= a

Id., at 208-209. The disclecsure of

materials sought may not be unreasonable.

716., ea 209. Reasonableness, however,

cannot be reduced to a formula. What is

relevant or excessive in breadth is

variable in relation to the nature,

purposes and scope of the inquiry. Id.

Contrary to Petitioner’s argument

that production of the material is so

burdensome as to be violative of his

Fourth Amendment right, Petitioner is

only required to produce records for the

years 1985 and 1986 related to the

following: ledgers, diaries and

appointment books related to Petitioner’s

office docketing system; documents

related to advertisements or

solicitations placed -or disseminated by

Petitioner; documents, files and records

related to two-day divorces in which

Petitioner accepted responsibility; and

financial records related to Petitioner’s

a

acceptance and handling of funds advanced

by his clients. - See Appendix Two and

Three. The Supreme Court of Illinois

correctly considered and rejected the

same arguments Petitioner raises here and

ordered Petitioner to produce the

documents for inspection and copying.

When the criteria set forth in

Oklahoma Press is applied to the present

matter, it is clear that petitioner’s

rights have not been violated. The

documents sought by the subpoena are

relevant and relate specifically to the

various charges of misconduct. The

materials. to be produced are not

excessive but are necessary to determine

whether Petitioner’s practice was

consistent with the representations made

in his advertisements; whether

Petitioner’s handling of funds advanced

by his clients was proper; and whether

Petitioner was adequately serving the

-_ =

needs of his clients.

Similarily, in Consolidated

Rending Co. v. Vermont, 207 U.S. 541, 28

S. ct. 178, 52 L.Ed. 327, (1908), the

Plaintiff argued, in pertinent part, that

production of the material called for in

the subpoena duces tecum would be

burdensome and beyond the authority

conferred upon the governmental body

seeking production. However, the Court

held that there was no reason why all

books, papers and correspondence which

relate to the subject of inquiry and

which were described with reasonable

detail should not be produced by the

Plaintiff.

Petitioner’s reliance on People v.

Reynolds, 350 Ill 11, 182 N.E. 754,

(1932) is misplaced. In Reynolds, the

court held the subpoena duces tecum

lacked the required particularity in

description of the books, records and

= =

writings demanded. Unlike Reynolds, the

subpoena duces tecum at issue specifies

and limits the production to books,

correspondence and records which are

necessary to conduct a proper

investigation.

Petitioner’s reliance on People v.

Keefe, 36 I11.2d 460, 223 N.E.2d 144

(1967) is also misplaced. In Keefe, the

court held the subpoena failed to give a

time period and contained language which

was susceptible to numerous

interpretations. The subpoena in the

present case, however, covers a specific

time period and does not contain any

language that can be misconstrued.

ontitine

CONCLUSION

For the reasons set forth above,

Respondents respectfully submit the

Petition for Writ of Certiorari be

denied.

Respectfully submitted,

rome Larkin

—jla—

APPENDIX ONE

No. 86-CI-6276

ATTORNEY DISCIPLINARY SYSTEM

OF THE

SUPREME COURT OF ILLINOIS

In the Matter of Douglas Smith

SUBPOENA

STATE OF ILLINOIS

SUPREME COURT-SS.

THE PEOPLE OF THE STATE OF ILLINOIS

Administrator’s No. 86-CI-6276

TO Douglas Smith

3407 North Pulaski

Chicago, IL

GREETING:

WE COMMAND YOU, that all business and excuses

being laid aside, you and each of you attend before the

Administrator of the Attorney Disciplinary System on

January 5, 1987 at 4:00 o’clock P.M. at 203 N. Wabash—

Suite 1900 in the City of Chicago, County of Cook, to tes-

tify and give evidence and the truth to speak in a certain

investigation now being conducted by said Administrator

relating to Attorney Douglas Smith.

—— Pg

And that you also diligently and carefully search for,

examine and inquire after and bring with you and pro-

duce at the time and place aforesaid

See Attached

together with all copies, drafts and vouchers relating to

the said documents, and all other documents, letters and

paper writings whatsoever, that can or may afford any

information or evidence in said investigation. And this you

shall in no wise omit under penalty of the law.

Witness, JULEANN HORNYAK,

Clerk of our said Court, and the

Seal thereof at Springfield, Illinois,

this 5th day of December, 1986

/s/ JULEANN HORNYAK, Clerk.

SUBPOENA ATTACHMENT

1. Any and all ledgers, diaries, appointment books and

records related to your office docketing system for

the period 1981 to present, including but not limited

to, any and all records which identify matters in which

you accepted responsibility for the period 1981 to

present;

2. Any and all documents related to advertisements or

solicitations placed or disseminated by you for the

period 1981 to present, including but not limited to,

copies of these advertisements and documents reflect-

ing your being billed for these advertisements and

your related payments;

3. Any and all notes, memoranda, documents, records,

correspondence and files related to divorces in which

—fQ—

you accepted responsibility and completed within two

days, for the period 1981 to present, including but not

limited to, divorces in which you accepted responsibil-

ity and completed for $80.00 for the period 1981 to

present; and

4. Any and all ledgers, documents, records and tax re-

turns related to your acceptance and holding of funds

which represent legal fees and costs advanced for the

period 1981 to present, including but not limited to

the account number, account title and name of bank

in which you maintained any and all client trust ac-

counts for the period 1981 to present.

PROOF OF SERVICE

Paul Morelli, states under oath that he served this sub-

poena and letter personally by delivering a copy of this

subpoena and letter to Douglas W. Smith on December

19, 1986 at 3407 North Pulaski Road, Chicago, Illinois at

or before 6:30 p.m.

/s/ PAUL MORELLI

[Notarization omitted in printing.]

—

—4a—

APPENDIX TWO

(Letterhead Of)

ATTORNEY REGISTRATION AND

DISCIPLINARY COMMISSION

of the

SUPREME COURT OF ILLINOIS

Arthur M. Scheller, Jr.

Attorney at Law

300 Meacham Avenue

Park Ridge, Illinois 60068

Chicago

May 4, 1987

Re: Douglas Wayne Smith

at the charge of

the Administrator

No. 86-C1-6276

Dear Mr. Scheller:

I have reviewed the above-captioned matter, including

the substance of our conversation on April 28, 1987.

Please be advised that the return date for the subpoena

decus tecum served on Douglas Wayne Smith on December

19, 1986 has been continued to May 20, 1987 at 1:00 p.m.

Therefore, Mr. Smith is expected to comply with the sub-

poena on May 20, 1987 at 1:00 p.m. In the event that Mr.

Smith does not comply with the subpoena on May 20,

1987, we will report his non-compliance to the Illinois

Supreme Court pursuant to Rule 754.

sow pam

At this time, in light of your objection to the subpoena

duces tecum, we are narrowing the scope of the subpoena

to the years 1985 and 1986. Therefore, in order to comply

with the subpoena duces tecum, Mr. Smith must appear

on May 20, 1987 to give testimony and to produce the

following items:

1.

Any and all ledgers, diaries, appointment books and

records related to Mr. Smith’s office docketing sys-

tem for the years 1985 and 1986, including but not

limited to, any and all records which identify matters

in which Mr. Smith accepted responsibility for the

years 1985 and 1986;

Any and all documents related to advertisements or

solicitations placed or disseminated by Mr. Smith for

the years 1985 and 1986, including but not limited

to, copies of these advertisements and documents

reflecting Mr. Smith’s being billed for these adver-

tisements and Mr. Smith’s related payments;

Any and all notes, memoranda, documents, records,

correspondence and files related to divorces in which

Mr. Smith accepted responsibility and completed with-

in two days, for the years 1985 and 1986, including

but not limited to, divorces in which Mr. Smith ac-

cepted responsibility and completed for $80.00 for

the years 1985 and 1986; and

Any and all ledgers, documents, records and tax re-

turns related to Mr. Smith’s acceptance and holding

of funds which represent legal fees and costs ad-

vanced for the years 1985 and 1986, including but

not limited to the account number, account title and

name of bank in which Mr. Smith maintained any

and all client trust accounts for the years 1985 and

1986.

——fie—

The subpoena duces tecum requires Mr. Smith’s produc-

tion of tax returns for the years 1985 and 1986 in order

to determine how Mr. Smith characterizes funds he has

received from others and disbursements made.

Thank you for your cooperation.

Very truly yours,

/s/ SUSAN D. SHIVERS

Counsel

a

APPENDIX THREE

(Letterhead Of)

ATTORNEY REGISTRATION AND

DISCIPLINARY COMMISSION

of the

SUPREME COURT OF ILLINOIS

Mr. Douglas W. Smith

Attorney at Law

3407 North Pulaski Road

Chicago, IL 60641

Chicago

April 27, 1988

Re: In re Douglas Smith

Supreme Court No. M.R. 4580

Administrator’s Nos. 87 CH 303

86-CI-6276

Dear Mr. Smith:

On April 12, 1988, you appeared at this office pursuant

to the subpoena duces tecum. During the proceedings on

that date, we discussed the matters related to the above-

captioned proceedings. As I advised you, the Administra-

tor will consider the subpoena duces tecum served upon

you in connection with Investigation no. 86-CI-6276 com-

plied with if the following records are produced within

21 days:

a. any and all notes, memoranda, documents, records,

correspondence and files related to two-day divorces

—8a—

in which you accepted responsibility from 1985 to

present;

b. any and all records related to your acceptance and

holding of funds which represent legal fees and costs

advanced for the years 1985 and 1986, including but

not limited to receipt journals, check ledgers, tax

returns and documents identifying the account num-

ber, account title and name of the financial institu-

tion in which you maintained client trust accounts

for the years 1985 and 1986; and

c. any and all documents related to advertisements or

solicitations placed or disseminated by you for the

years 1985 and 1986, including but not limited to

copies of the advertisements and documents reflect-

ing billing for these advertisements and the related

payments.

If you have any questions please contact me immediate-

ly. Thank you for your cooperation.

Very truly yours,

/s/) DEBORAH M.-KENNEDY

Senior Counsel