# Petition for Writ of Certiorari — Stern v. Nix

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1909%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 826

## Text

87-2077

NO.

IN THE

Supreme Court U.S,
FILED

MAY 28 1988

YOBEPH F. SPANIOL, UR,
CLERK

SUPREME COURT OF THE UNITED STATES

TERM 1988

PETER M. STERN,

Petitioner

Vi

HONORABLE ROBERT N.C. NIX,

.)

INDIVIDUALLY AND AS CHIEF
JUSTICE OF THE SUPREME COURT
OF PENNSYLVANIA, HONORABLE ROLF LARSEN,
HONORABLE JOHN P. FLAHERTY,
HONORABLE JAMES T. McDERMOTT,
HONORABLE WILLIAM D. HUTCHINSON,
HONORABLE STEPHEN A. ZAPPALA and
HONORABLE NICHOLAS P. PAPADAKOS,
INDIVIDUALLY AND AS JUSTICES OF THE
SUPREME COURT OF PENNSYLVANIA,

Respondents

Petition For Writ Of Certiorari To The
United States Court Of Appeals

For The Third Circuit

Arthur W. Lefco,
Alan C. Milstein,
MESIROV, GELMAN,

Esquire

Esquire

JAFFE,

CRAMER & JAMIESON

15th Floor,

lelphia,

15) 893-5000
torneys for Petitioner

idelity Building
PA 19109

STATEMENT OF QUESTION PRESENTED

i Whether the federal district
courts have the power to hear a
generalized constitutional attack by a
disbarred attorney, on behalf of himself
and others similarly situated, on the
rules by which the Supreme Court of
Pennsylvania disbarred him?

zs Whether state court rules may
constitutionally allow a state supreme
court to reverse a crucial finding of
material fact and credibility by the only
tribunal which heard the evidence and, on
the basis of that reversal, to disbar an
attorney, where such rules make no
provision for an evidentiary hearing

before the state supreme court?

(1)

TABLE OF CONTENTS

STATEMENT OF QUESTION PRESENTED.
TABLE OF AUTHORITIES

REFERENCE TO OFFICIAL AND
UNOFFICIAL REPORTS.

STATEMENT OF JURISDICTION.
STATEMENT OF FACTS
ARGUMENT

CONCLUSION

APPENDIX

OPINION OF UNITED STATES COURT

OF APPEALS FOR THE THIRD CIRCUIT.

OPINION OF THE UNITED STATES
DISTRICT COURT.

OPINION OF SUPREME COURT OF
PENNSYLVANIA IN IN RE STERN

(11)

18

as

TABLE OF AUTHORITIES

PAGE(S)
Brennan v. Grisso, 198 F.2d
Denise, GAk. 2952)... «© « 39
District of Columbia Court
of Appeals v. Feldman,
ew wam. Boe (1963) .... .15, %,
eo es
y: io 2
{ Por: P
a0, JV,
50
Ex parte Secombe, 60 U.S. 9,
ne eee See (1656) .... .33, 36
Gershenfeld v. The Justices
of the Supreme Court of
Pennsylvania, 641 F.Supp.
1419 (E.D.Pa. 1986) ..... 25
Holiday v. Johnston, 313 U.S.
aaa, G1 S.Ct. 1015, 85
ammo aewa (L941) ...... 40
Howell v. State Bar of
Texas, 710 F.2d 1075
CTeees eee e . . .,. «.. 24, 25
Laurie v. Golden Hersh,
716 F.2d 401 (7th Cir.
EES ee 25

Louis v. Blackburn, 630 .
®&.2G4 1105 (Sth Cir. 1980) . 44, 49

(111)

PAGES

Mattas v. Supreme Court
of Pennsylvania, 576 F.Supp.
1178 (W.D.Pa. 1983) ... aa, 420, 22

Mathews v. Eldridge, 424
U.S. 319, 96 §.Ct. 893,
7 &. BS. 28 28 -€4976)s 2 x 42, 44, 47

In Re Ming, 469 F.2d
agae (7th Cir. 1972) ....2.2.-e«6. 38

In Re Ruffalo, 390 U.S.
544 20 L.Ed.2d 117,
Se S.Ce. 1222 (2968). . « . as 2 os > 3

Morgan v. United States,
298 U.S. 468, 56 S.Ct. 906,
OO LL.B. i266 (19396) ... :. 2. 1% 36

N.A.A.C.P. v. Button, 371 U.S.
4i3, 83 §.Ct. 3228,
9 &.84.26 405 (1963)... 26. ss 33,39

Queen v. Bertrand, 16 Eng. Rep.
391 (1867) (quoted with approval
in United States v. Raddatz,
447 U.S. 667, 100 S.Ct. 2406,
65 L.Ed.2d 424 (1980)). ...... 37

Razatos v. Colorado Supreme
Court, 746 F.2d 1429 (10th Cir.
BUGS)» «1 6 ss s Bey ae, 26, 33, SS 47
48, 49

Rogers v. Supreme Court of
Pennsylvania, 641 F. Supp. 1419
(Sa... Fa. 3968)... ... = 2 28. 26. 86

(iv)

PAGES

Schwiser v. Brady, 438 U.S.
204, 98 S.Ct. 2699,

>/ &.BG.426 705 (1978). «5 « «> 40
spevack v. Klein, 385 U.S. 511,

S/7 S.Ct. 625, 17 L.Ed.2d

Pie. Geer es « ¢.4 oe & «ow aa
stern v. Nix, 840 F.2d 208

(3d Cir. 1988) » os 19
Toffano v. Supreme Court of

Nevada, 718 F.2d 313

(9th Ci 1983) . 25
United States ex. rel. Graham

v. Mancusi, 457 F.2d 463

fis: } Ae Pe bee ee 39
United States v. Nugent,

100 F.2d 215 (6th Cir. 1938),

cert denied, 306 U.S. 648, 59

S.Ct. 591, 83 L.Ed. 1046 (1939) 39
United States v. Oregon Medical

society, 343 U.S. 326, 72

S.Ct. 690, 96 L.Ed. 978 (1952) 38
United States v. Raddatz,

447 U.S. 667, 100 S.Ct.

2406, 65 L.Ed.2d 424

(1980) 37, 41, 42, 47, 48,

pt
49
+

PAGES

STATUTES

Federal Magistrates Act,

28 U.S.C. §636, et seg. ..... 41
Bemecwavens 2aCG), BSat@)t2). s 2.6 38
Geer esis OOM e. « & aa -& we eH e 5
tciste MNES: «© «©». © ae a6 5
Perens BOs « « 0 2 ss ts 78 6, 7,088

ws

4

>
’ »«
‘
+4 »4
»4
"
= a4
‘ ‘
c an]
da
‘
et
4s
‘
a)
me
“ “
)
‘ rt
.
r¢ ‘
i)
" “
; bi,
ad
o/
4
bas
o4 +?
= 4
“ ‘
‘
;
ot
a4 4
° bas
‘ ‘

STATEMENT OF JURISDICTION

Jurisdiction of this Court is
invoked by virtue of 28 U.S.C. §1254 and
by Supreme Court Rule 17. Petitioner
seeks review of an order of The Third

Circuit dated February 29, 1988.

(viii)

;
v4 4 .
ae r+
‘ >
, x
4
uy) rt :
= .
] }
, 7 .
" ont
— )
] 44
- bade
-4 ‘
as ~4
rn +
ad i +
4 a4 i
> : ‘ :
r4
: j r4
4 4
‘ on
« »)
a4 >
“
j j +4
, 74
4 a >4
— ‘ ‘
© a] 4
j »
a4 =. ‘
“
| ae | 44
4 ; 44
4 >
bas ) +
“ .
; bA4 )
; A
‘ 4
’ ) ‘

>
‘
>
.
_
> 4
>
of 4
_
>
‘
4
;
o~ j
a —
Ly 4
‘
;
bay be

4
+ .
ae
‘ -
- -
4 >
i >
‘ ;

O'Farrell. An FBI agent, as an aside to

other business, mentioned to a then
partner of Stern that it nad been sug-

gested that Stern had delivered funds to

' rot

OQ Farrell. The FBI had no usable evi-
dence to sustain the allegation.
Nevertheless, upon inquiry by federal
agents, without requesting immunity,

Stern readily discussed his contacts with

O '

fry

arrell including his delivery of the
$5,000 gift at meetings attended by
attorneys with the United States
Attorneys Office and agents of the FBI.
The government, however, could not and
would not have prosecuted Stern because
it had no usable evidence that the
transaction had occurred, and because it
considered the offense to be merely a
violation of the anti-gratuity provisions
of the Taft-Hartley Act and not a bribe.

Moreover, if the government had brought

(2)

an indictment, Stern knew he could have

invoked his Fifth Amendment privilege

(tor which he could not suffer attorney
discipline as a matter of constitutional
law) and prevailed. Nonetheless, Stern

+, } -+ y+ ) ~ rI3i+ } ¥ .
rforthrightly cooperated with the federal

Department informed the Pennsylvania
Disciplinary Board of Stern's statements

LS DR1-102(A) provides:
A lawyer shall not
(1) Engage in
illegal conduct involving moral
turpitude

(2) Engage in
conduct involving dishonesty,
fraud, deceit, or misrepre-
sentation.

—
WJ
~~

B. THE PENNSYLVANIA DISCIPLINARY PROCESS

Pursuant to the Pennsylvania Rules
of Disciplinary Enforcement ("Pa.R.D.E."),
matters of discipline relating to
attorneys admitted to practice in
Pennsylvania are subject to action by
the Disciplinary Board of the Supreme
Court of Pennsylvania ("Disciplinary
Board"), with final action being taken by
the Supreme Court. The Pennsylvania

Supreme Court appoints the members of the

(contd. )

(3) Engage in any
other conduct that adversely
reflects on the protective of
law.

DR7-102(A) provides:
In his representation of a
Client, a lawyer shall not:

(7) Counsel or assist
his client in conduct that the
lawyer knows to be illegal or
fraudulent.

(4)

Various hearing committees, which are

empowered to conduct hearings on

discipline-related matters, and to submit

)
ry
(D

oO
Oo
hy
ct
cr
O
ct
2
4)
O
Ww
2)

'O
t-
te
J
m
Kh

K
Ww
re)
~w
ry

CQ,

containing findings and recommendations.

a a> | e * q 4 e294 +

system which actually hear the witnesses
| ge er de _ aes 3

and preside over the admission of

evidence. Ta... 8. 205, 208. The

ay, a NVI r 1
ra... 205, 20 At the conclusion of
an investigation, Disciplinary Counsel

matters before the hearing committee.
Fa. R.D.E. 208(a).

The hearing committee hears the
evidence and testimony presented by both
the Disciplinary Counsel and the attorney,
files a report containing its findings
and recommendations and transmits the
report with the record of the proceedings
to the Disciplinary Board. Pa.R.D.E.
Z2Z08(c). The Disciplinary Board reviews
the hearing committee's report and the
record and briefs, if any, filed by the
parties with the Disciplinary Board. The
members of the Disciplinary Board then
prepare their own findings and recom-
mendations which, together with the
briefs of Disciplinary Counsel and the
subject attorney and the entire record,
are transmitted to the Pennsylvania
supreme Court. Pa.R.D.E. 208(d). In the

event the Disciplinary Board recommends

(6)

that the matter should be concluded by
disbarment, the attorney may submit to
the Court a request to present oral
argument. Pa. R.D.E. 208(e).

In the event the Disciplinary Board
recommends a sanction less than disbar-
ment, the Pennsylvania Supreme Court may,
either by motion by Disciplinary Counsel

Or sua sponte, upon consideration of the

recommendation issue a rule to show cause
why the attorney should not be disbarred.
If the Court issues such an order, the
attorney has the right upon request to
file a brief and for oral argument. The
attorney, however, has no right to
present testimony or other evidence to
the Pennsylvania Supreme Court before it
takes action contrary to the recommen-
dation of the hearing committee.

Fa. 8.0.8. &206te).

(7)

In determining whether an attorney
should be disbarred, notwithstanding the
absence of such a recommendation by the
hearing committee, the Disciplinary Board
or Disciplinary Counsel, the Pennsylvania
Supreme Court's review of attorney
discipline is de novo; though it acts
solely upon a review of the transcribed
record, and the briefs and oral argument
of Disciplinary Counsel and the subject
attorney, the Court may reject the
hearing committee's findings including
findings on credibility and may order the

attorney be disbarred.

C. THE PROCEEDINGS AGAINST STERN

After the filing of the petition for
discipline, Stern and Disciplinary
Counsel entered into a comprehensive
stipulation of facts, including Stern's
acknowledgment that he violated Disci-

(8)

plinary Rule 7-102(A)(7), which prohibits
a lawyer from counseling or assisting
clients in conduct the lawyer knows to be
illegal or fraudulent. A hearing was
held before a hearing committee on
September 26, 1985, in which Stern
presented mitigation and other evidence.
At the hearing, Stern presented
the testimony of Robert Welsh, the
Assistant U.S. Attorney who prosecuted
the O'Farrell case. Welsh testified that
the actions of Stern could not be charac-
terized as a bribe because there was no
expectation that the money delivered by

Stern was intended for any quid pro quo.

Stern testified on his own behalf and the
hearing committee heard evidence about
Stern's dire financial straits. At the
hearing, Disciplinary Counsel stated it
would recommend no sanction greater than

public censure.

The hearing committee filed its
report on February 27, 1986, dismissing
the charges based on DR 1-102(A)(3)(4) &
(6) and recommending discipline of
private informal admonition or, at most,
private reprimand. In reaching this
conclusion, the hearing committee expli-
citly found that the $5,000 payment

by Stern was made with neither the

(D

xpectation nor intention to influence
O'Farrell and is “the oniy blemish on the
personal and professional record of an
otherwise honest and honorable man, an
able and competent practitioner of law.
The hearing committee also placed
great weight on the fact that, but for
the voluntary statement by Peter Stern to
the federal authorities, "these disci-
plinary proceedings would have no founda-

*

tion." Accordingly, the hearing

committee concluded that because Stern

(10)

could have easily escaped discipline by
refusing to make any statement, it could
not "penalize Mr. Stern for his admis-
sion, as the first step towards rehabili-
tating his conduct."

On July 7, 1986, the Disciplinary
Board issued its report and recommenda-
tion to the Supreme Court of
Pennsylvania. After reviewing the
recommendation, findings of fact and
conclusions of law of the hearing com-
mittee, the record and the briefs of
the respective parties, the Disciplinary
Board concluded that the appropriate
sanction in this matter was public
censure. While it did not accept the
hearing committee's recommendation of
private admonition, the Disciplinary
Board stated that Stern's considerable

and compelling evidence in mitigation

(11)

"may appropriately shield him from
suspension."

On October 9, 1986, the Supreme
Court of Pennsylvania, without any action
on the part of Disciplinary Counsel,
entered a rule upon Stern to show cause
why he should not be disbarred. On
November 3, 1986, Stern requested an oral
argument and an evidentiary hearing.
Stern stated in his request for an
evidentiary hearing that the hearing was
necessary "so that this Court may have
the same opportunity as the hearing
committee to judge his demeanor, credi-
bility, candor and contrition, as well as
his fitness to practice law." On
November 10, 1986, the Supreme Court of
Pennsylvania granted Stern's request for
oral argument but denied his request for

an evidentiary hearing.

Both Stern and Disciplinary Counsel
submitted briefs in response to the Rule
to Show Cause. In his brief, Stern

emphasized that the Supreme Court of

md

ennsylvania should adopt the recommen-
Gation of the hearing committee which
recommended a sanction of private disci-
pline because it was the hearing com-
mittee alone which had the opportunity
to hear the evidence. Disciplinary
Counsel also asked in its brief that the
Court not disbar Stern. Oral argument
was conducted on January 29, 1987.

On June 3, 1987, the Supreme Court
of Pennsylvania issued its Opinion and
Order disbarring Stern. In its Opinion,
the Court emphasized that it considered
the intent to influence "a crucial

factor” in its discussion. With respect

(13)

record and concluded that the Hearing
Committee's finding with respect to
Stern's intent in delivering Frankford
Quaker's funds was “supported by no
credible evidence." After rejecting this
finding on credibility by the Hearing
Committee, the Supreme Court of
Pennsylvania then concluded -- solely
upon the cold record before it -- that

tern's delivery of money to O'Farrell
was a bribe.

In footnote 2 of the opinion, the
Supreme Court of Pennsylvania acknowl-
edged that Stern had requested an evi-
dentiary hearing but that his request
was denied because this was a “procedure
for which the rules of Disciplinary

Enforcement make no provision."

D. STATEMENT OF THE CASE

On June 17, 1987, Stern filed this
action in the United States District
Pennsylvania. The gravamen cf Stern's

Complaint was that the rules and pro-

cedures promulgated by the Supreme Court

= _- + a - ~ - — --
hearing committee s findings of material

- * .

Pennsyivania moved to dismiss the

Sleluwtel i Teas araquir s"rar y . ~s — -+hea

~~ M+ Aawsse - JULNnYg meu ~ a sa, wrt bo fo

= 7 ~ — —_ :

federai courts had no jJuriasaiction uneer

r ? - s | ¥

' at end ae - a on » .

wiStract of TVOLUumMoiIa LCOUrt of Appeals Vv
—_ - — — ~

(15)

Feldman, 460 U.S. 462 (1983). The

district court denied the motion.

After a nonevidentiary hearing
before the Honorable Marvin Katz, Judge
Katz denied Stern's motion for preli-
minary injunction on the grounds that
Stern had not shown a reasonable likeli-
hood of success on the merits. There-
after, on August 14, 1987, Judge Katz
issued an Order and Opinion holding
that the Pennsylvania Supreme Court did
not violate Stern's rights to due process
of law.

Stern timely filed an appeal to
the United States Court of Appeals for
the Third Circuit. After all of the
judges of the Third Circuit had recused
themselves, by Order of the Chief Justice
a panel from the Court of Aopeals for the
Second Circuit then sat as the Court of

Appeals for the Third Circuit by designa-

(16)

tion. In reviewing the facts, the Court

of Appeals agreed with Stern that the
hearing committee, which had heard the
evidence, conciuded that neither Stern
nor his client intended the money as a
bribe, and that the Supreme Court of
Pennsylvania, upon review of the cold
record and after denying Stern the
opportunity for an evidentiary hearing
before it, rejected this finding and
found the payment was a bribe, on the
basis of which it disbarred Stern.

The Court of Appeals concluded,
however, that Stern was seeking by this
action to reverse the Supreme Court of
Pennsylvania's decision to disbar him.
On that basis, the Court of Appeals held

that the federal courts had no jurisdic-

tion under this Court's ruling in

District of Columbia Court of Appeals v.

— - ee eer

Fe
Ju
As
Th

Th
deserve
under t
(a,c),
United
of Appe

courts

ARGUMENT

deral Courts Have Subject Matter
risdiction Over This Matter Which
serts A Generalized Challenge To
e Disciplinary Rules Of The

ommonwealth Of Pennsylvania.

e issues presented by this case

review on a writ of certiorari

Dp)

he criteria set forth in Rule 17.1
Rules of the Supreme Court of the
States. The decision of the Court
als conflicts directly with other
of appeals on the same issue, and
ts directly with the Court's

nin District of Columbia Court

_

of Appeals v. Feldman, 460 U.S. 462

ern s general constitutional

ge to provisions of the

Procedure under which he was disbarred,

on the basis that his claim really
addressed his own disbarment and was
therefore merely a disguised attempt to
obtain federal review of the final

oan!

judgment of a state court. the court

stated that, despite Stern's "skillful
attempt to mask the true purpose of the

the Rooker-Feldman doctrine," it was

convinced that Stern sought essentiaily
to reverse the judicial decision of the
Pennsylvania Supreme Court. Stern v.

Nan, G40 F.2aqa. 208, 212 (3d Cir. 1988).

Besides requesting a permanent injunc-

veneer ... became increasingly thin"
because he requested a preliminary

injunction and because the headings in

+-4
WO
—

not to other attorneys similarly situ-
ated. Id. at 212-13.

The application of this Court's
decision in Feldman does not depend on
genuflection, the thickness of one's
veneer, or the phrasing of headings in
appellate briefs. Moreover, Stern's
right to have a federal court adjudicate
his constitutional claims does not depend
on whether he requested an injunction;
the availability of that remedy, or its
denial, cannot determine whether there is
jurisdiction to address the underlying
federal claim.

On the contrary, Feldman teaches
that it is the essence of the claim which
controls jurisdiction. Under the lower
court's drawing of the Feldman line, it

.

s likely that Mr. Feldman himself would

ho.

*
1

have heen denied access to the federa

courts. The lower court's decision is

_—
NO
©

flatly at variance with Feldman, and
review should be granted to prevent other
federal courts from relying on the Court
of Appeals' misapprehension.

In Feldman, this Court expressly
recognized federal district court juris-
diction in cases such as this one.
Feldman had been denied admission to the
District of Columbia Bar, which had
refused to waive the requirement of
law school graduation. Feldman claimed
this refusal violated his constitutional
rights in five respects. Two of the five
allegations asked the federal district
court to review not simply the challenged
bar admission rules but the District of
Columbia Court of Appeals application of
those rules to Feldman. Feidman claimed
that the District of Columbia Court of
Appeals had applied these rules in an

arbitrary, capricious and discriminatory

(21)

manner. This Court concluded that the
district court had no subject matter
jurisdiction over these two claims which
were "inextricably intertwined" with the
state court's decision denying admission
to the bar and, thus, required the Court
"to review a final judicial decision of
[a jurisdiction's] highest court ... in
a particular case." Id. at 482, 486.
Upon review of the remaining three
allegations in Feldman's Complaint,
however, this Court held that these were
subject to federal subject matter juris-
diction. In these claims, Feldman had
contended not that the rule was applied
unconstitutionally, but that the rule
itself was unconstitutional. Because
these claims "involve[d} a general attack

on the constitutionality of [the state

rule}]," this Court held that subject

bo

(22)

matter jurisdiction existed. Id. at
487.
This Court reasoned:

We have recognized that state
supreme courts may act ina
nonjudicial capacity in promul-
gating rules regulating the
bar. . . . Challenges to the
constitutionality of state

bar rules, therefore, do not
necessarily require a United
States District Court to review
a final state-court judgment in
a judicial proceeding. Instead,
the District Court may simply
be asked to assess the validity
of a rule promulgated in a
nonjudicial proceeding. If
this is the case, the District
Court is not reviewing a
state-court judicial decision.
In this regard, 28 U.S.C.

§1257 does not act as a bar to
the District Court's considera-
tion of the case and because
the proceedings giving rise to
the rule are nonjudicial the
policies prohibiting United
States District Court review of
final state-court judgments are .
not implicated. United States
District Courts, therefore,
have subject-matter jurisdic-
tion over general challences to
state bar rules, promulgated by
state courts in nonjudicial
proceedings, which do not
require review of a final

(23)

4) Bi TU 73)
-_ SC = My }J ue) G4 0) rd UO
hy oe) re w a) 3 O Be. ab) q) rs
© 68) = a O = v 4 @ & ba ue)
mM) OV ue) 0) > 8) w & 1) ct “4 0) iD)
| Be ia Ce Se mn a p oO O » © @2 &
@ $4 Q, O a rb) ha a 3) W) p c 4 To )
4 | : by a 4 by & 2) . O 3 O 3 ey) z
w | Sy rs YY {J Oo ) 2 w hy 0) 0) © U qt UO J .
Pl ort Q oO 7s) 8) 4) Q) ‘e)) .) rd cS ) hy o hy ie:
ra V)| UY) ” wn 4) mw . wv ” > ; wo 6) w 4) qt a 0) O
cd wo hy ”) hy 0) 8) rd tE hy C) Q) e) |
S . G “@) ; ” © E ‘d ) = 4 Oo S oY) ) ) S 7)
to > p aN) p _ 4 oO B O rd ‘A O hu O G 7) To ro
Ww) > fH rj “rf a) 8)
4) r ~ vb) e) )) rd 4 B p oe 19) G4 Uy) >» wv
'e oH we @” 4 ue) O E = G4 ~ 8) 19) Oo O “4 =} rt UO
0 qd) Ww) a4 G Ma e) O =} a) v0) Q, O {xy rd Q
=} =| c- O 4) U cb) — ct oO rd ) — oO w w n —
Ne O| = 4) ron cc Ee. O . 4 cD) 7 re) iY) rd U - _ U 4 n, . O se) My 4 ~~
rm w OD A 4) Wy > O a > J G4 O 7) y
U rj N C G U > O q) 8) ue) 4) hy rd c . z= 4 O
7) ' wo oO “4 c hy ha wo w 0) 9) V vy) 8)
hy hu . fry “A w J) ®) hy 4) Ta ri) ne — 3 rd | C
3 ’ > . WY) O = O 6) G Cc | oO ue) w = 0) 4 a)
Ord iC) re O -_ ‘A p S ) 4) “rd 2 iD) on 1b) - w 0) & S 4
oS ee) hy rf = U -_ x 'w) 4y re) Q, @ oe gall J fi
, ! cs) a 0) ie) “ C cA} J 4] a 'O f Oo, 0) a 4)
O -r Ww) 4 tH “@) | ie bea W) ria} oO Cc «GL «G [xy a) bu 0)
Pp p co 4 . O A ue) qd "s i) © re WY
wm hs |
capacity, may promulgate
regulations, adopt polic
hic

a

icies or
authorize practices which, in
and of themselves, violate the

S90 F. Supp. at 106.

The Court of Appeals in this case
declined jurisdi
Stern had sought review of a final
judgment of the Supreme Court of
Pennsylvania. Because no evidentiary

* . . . + ~
hearing was held before the district

court, the Court of Appeals based this

4 . . rT . _ , » al
conclusion solely on the Compiaint and

-
~
.

ty o
—~ =

.
mai ~
oc

Stitutio
i

(18a)

mo

~-

(

o the extent of

-
—

im and

a“
-*

Supreme

the

where

tion.

*

ommendca

‘ar

~

w

ect
.*

ia
J
al

.

ngs,

°.

a to re

nd

4
~

nnsylvan

~

.

lvan
attorney on
f

yl
fact and cr
n

.
\A

5
Al
(7 ~+
~~

we

t
°

prem

~
~

a

.

fording

+
ol

hearing.

Ou

o
~

the

me
rd and

out a

Se
orado
h

.
.

upr
rec
_*
~ wee
~’
~~
_-
~ -

o
Ww
C -
w

”

identiary h

=";
—

ss

a

based on contested credibility assess-
ments and, on the basis thereof, made
recommendations of discipline. There-
after, the Supreme Court of Colorado,
upon review of the record, adopted the
findings of the hearing committee as well
as its recommendation. Razatos com-
plained that this procedure violated his
right to due process in that the Colorado
rules did not afford him the right to an
evidentiary hearing before the Colorado
Supreme Court, irrespective of whether
the Court adopted or rejected the hearing
committee s findings.

After reviewing the facts and
holdings in Feldman, the Tenth Circuit
concluded that the district court had
jurisdiction over Razatos' claim. The
court stated:

In the case at bar, Razatos

contends that under the Colcrado

rules, the Colorado Supreme

Court is the final arbiter of

(30)

fact in disciplinary proceed-
ings. He argues from that
premise that Colo.R.Civ.P.252
therefore violates the Due
Process Clause because it
fails to require the final
arbiter of fact to observe the
witnesses personally in cases
where credibility is a critical
facter. In order to evaluate
this claim, the district court
need not review the decision
of the Colorado Supreme Court.

t need only lock at Rule 252
as promulgated, and as con-
strued by state case law.
Razatos framed his consti-
tutional challenge in such a
way as to allow district court
subject matter jurisdiction.
We therefore reverse the
district court's decision that
it lacked jurisdiction.

Id. at 1434 (emphasis supplied).

As in Razatos, Stern's Complaint is
a generalized constitutional attack on
the Rules of Disciplinary Enforcement
which do not afford a disciplined
attorney the right to an evidentiary
hearing before the Pennsylvania Supreme
Court; Stern's claim differs from that in

Razatos only to the extent it is limited

(31)

to those cases where the Pennsylvania
Supreme Court rejects the findings of the
hearing committee and, on the basis
thereof, disbars the attorney. Thus,
Stern does not ask the federal courts to
review the decision of the Pennsylvania
Supreme Court in his particular case;
instead, he asks only for a review of the
Rules of Disciplinary Enforcement as
promulgated to decide whether they
comport with due process. Accordingly,
the federal district court had juris-
diction over Stern's claim.

The rules promulgated by
the Pennsylvania Supreme Court violate
the essential guarantee of due process of
law. Stern has been disbarred by the
operation of those rules. It cannot be
that such rules may evade review
precisely because Stern has suffered

disbarment under them. On the contrary,

(32)

this Court should exercise its discretion
and direct the lower courts that it is
their job to undertake such review, and

to declare such rules unconstitutional if

THE RULES OF DISCIPLINARY ENFORCE-
MENT BY WHICH THE SUPREME COURT OF
PENNSYLVANIA DISBARRED STERN
VIOLATE THE DUE PROCESS CLAUSE OF
THE 14TH AMENDMENT.

Since the early days of the
Republic, this Court has stood guardian
over the right of attorneys to practice
law under constitutional standards.

See, e.g., In Re Ruffalo, 390 U.S. 544

(1968); Spevack v. Klein, 385 U.S. 511

(1967); NAACP v. Button, 371 U.S. 415

(1963); Ex parte Secombe, 60 U.S. 9

(1856).

tate courts have traditionally
exercised virtually unlimited authority
over attorneys admitted to practice

(33)

before them, unchecked even by state
legislatures under the doctrine of
separation of powers. Unlike civil
litigants or criminal defendants,
attorneys have no right to appeal from
arbitrary, capricious, or simply unfair
decisions of those courts affecting their
very right to earn a living. This Court,
and the inferior federal courts, are the
only bodies which have the power to
ensure that at least the rules applied to
attorneys do not violate fundamental
constitutional guarantees.

The importance of the power of
the federal courts to ensure that the
attorney disciplinary process comports
with due process cannot be understated.
While a state court has exclusive power
to promulgate regulations and impose
discipline in supervising its licensed

attorneys, this power may not be exer-

(34)

cised in violation of federally protected

rignts. H.A.A.C.P. ¥. Button, 371 U.S:

415, 83 $.Ct. 328, 9 L.Ed.2d 405 (1963);

in Re Ming, 469 &€.2€ i332 (/th Cir.

1972); Mattas v. Supreme Court of

Pennsylvania, 576 F.Supp. 1178 (W.D.Pa.

19383). As the United States District
Court for the Western District of

Pennsylvania stated in Mattas, supra,

"even a lawyer has the right to enjoy
first class citizenship." 576 F.Supp. at

1182 (quoting In Re Ming, 469 F.2d at

i334).
More than 100 years ago, the United
States Supreme Court declared:

The power [to disbar] .. . 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

(35)

court, as the rights and
dignity of the court itself.

Ex parte Secombe, 60 U.S. 9, 13,
15 L.Ed. 365 (i856).

The risks of an erroneous depriva-
tion if attorneys are not permitted an
evidentiary hearing before The Supreme
Court of Pennsylvania in circumstances
where the Supreme Court on the basis of a
cold record rejects a hearing committee's
material findings of fact or credibility
and orders disbarment, are self-evident.
The procedural safeguards against such
risks are among the basic tenets in
American jurisprudence, succinctly
described by Chief Justice Hughes as:
"The one who decides must hear." Morgan

v. United States, 298 U.S. 468, 481, 56

S.ct. 906, 80 L.Ed. i288 (i93¢7.
More than one hundred years ago,

Lord Coleridge explained the risks of

(36)

making credibility determinations ona
cold record:

The most careful note must
often fail to convey the
evidence fully in some of its
most important elements

It cannot give the look or
manner of the witness: his
hesitation, his doubts, his
variations of language, his
confidence or precipitancy, his
caimness or consideration ;
the dead body of the evidence,
without its spirit, which is
supplied, when given openly and
orally by the ear and eye of
those who receive it.

Queen v. Bertrand, 16 Eng. Rep. 391, 399

(1857) (quoted with approval in United

tates v. Raddatz, 447 U.S. 667, 679,

100 S.Ct. 2406, 65 L.Ed.2d 424 (1980)).
The principle that due process
prohibits a court from making factual or

credibility determinations on a cold
record while it disregards the findings
of the body which heard the evidence is
reflected in a variety of contexts. For

instance, the Federal Rules of Civil

(37)

Procedure provide that the findings of

fact of the body which heard the evi-
dence, whether a trial court or a master,
may be reversed only when "clearly
erroneous." F.R.Civ.P. 52(a), 53(e)(2).
As Justice Jackson explained, these rules
reflect the common understanding that:

Face to face with living
witnesses, the original trier
of facts holds a position of
advantage from which appellate
judges are excluded. In
doubtful cases, the exercise of
his power of observation often
proves the most accurate method
of ascertaining the truth...
How can we say the judge is
wrong? We never saw the
witnesses.

United States v. Oregon Medical Society

343 0.8. 326, 339; 72 3.Ct. 890, 96 L.ma.
978 (1952).

Similarly, where a trial judge
either resigns or dies after the con-
clusion of a trial, courts have uniformly
held that due process bars the successor
judge from resolving factual disputes on

(38)

the basis of a cold record. See, e.g.,

Brennan v. Grisso, 198 F.2d 532 (D.C.

Cir. 1952); United States v. Nugent,

100 F.2d 215 (6th Cir. 1938), cert
denied, 306 U.S. 648, 59 S.Ct. 591,
83 L.Ed. 1046 (1939).

In United States ex. rei. Graham

v. Mancusi, 457 F.2d 463 (2d Cir. 1972),

Judge Friendly applied this principle to
invalidate a procedure whereby a state
appellate court entered a conviction for
a lesser offense when reversal of the
Original conviction was required. Judge
Friendly declared:

Due process forbids that, when
an issue of fact is presented,
a man should be sent to prison
without the trier of facts
having seen and heard his
accusers and himself, if he
desires to testify, and weigh-
ing the credibility in the
light of their demeanor on the
stand.

Id. at 469.

(39)

“9

ely on a review of the cold record of a

hearing before a United States

(@)
O
3
3
-
169)
67)
?
‘)
as
~
ed
s

determining “crucial
facts. Holiday v. Johnston, 313 U.S.

342, 61

Ww

.Ct. 1015, 85 L.Ed. 1392 (1941).

In so holding, the Court emphasized:

ess

nhac pe of crucial
h

plained, while the holding in Holiday

..went to the fundamental
u

nature of the kind of factfind-
ing on which many judicial
determinations must rest

b>
©

Most analogous to the issues pre-
sented here are the cases concerning
the constitutionality of the procedures
under the Federal Magistrates Act, 28
U.S.C. §636, et seg. The procedures set
forth in this Act, and those utilized by
the Pennsylvania Supreme Court in dis-
ciplinary proceedings, both provide
for the referral of the matter to a
hearing body (magistrate or hearing
committee) before which the litigant
presents testimony and other evidence.
Thereafter, that hearing body issues a
report and recommendation to the court
which is then empowered to make a
"de novo determination" of the hearing
body's findings. Compare 28 U.S.C.
§636(b)(1)(B)(C) and Pa.R.D.E. 208.

In United States v. Raddatz,

447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d

424 (1980), this Court considered whether

(41)

» - 7
- . - ’ " 7: ‘
_*
‘ san? : oe \
. - ~A rte . ’ cea ‘ \
, > . . . ‘ > > rt '
. - . 4 f I (

. .
” crs AW = nrae rod ? “N
GUuesrtvion w wes & 2uUu€e process WOULG
-
a >a ia -r res one ae such ~ ru nc a
require L212 ~ + i = ~~ awe a nearing ~+
> =
J
o ln a te . > “sr > -~ ~*> +}, -~ > - =
the court were to reject the magistrate s
~ , ~~ a”
-_ er -_hatlea— — -~ qd . _ * ~tey e
findi ‘ye on ~ > e pe B® | al ne a “yy
~ * — [_-_.;, ad that _+* would ser
iowever, ~ ~~ ee Se wae — ~- “ s& riousiy
-

bility findings on a cold record, noting:

Neither the statute nor its
legislative history reveals any
specific consideration of

the situation where a district
judge after reviewing the
record in the precess of makin
a de novo "determination" has

doubts concerning the credibil-
ity findings of the magistrate.
The issue is not before us, but
we assume it is unlikely that a
district judge would reject a

magistrate's proposed find: ngs

on credibility when those
findings are dispositive and
substitute the judge's own
appraisal; to do so without

seeing and hearing the witness
Or witnesses whose credibility
is in question could well give
rise to serious questions which

we do not reach.

447 U.S. at 680, n. (emphasis in

Original).

This issue left open by this Court
was squarely faced by the Fifth Circuit

in Louis v. Blackburn, 630 F.2d 1105 (Sth

Cir. 1980). In Louis, the district court
rejected a magistrate's recommendation to
grant a writ of habeas corpus based
solely on a reading of the transcript of
the hearing. The Fifth Circuit, again

under an Eldridge analysis, held that the

action of the district court violated
fundamental rights to due process
gQuaranteed by the Fourteenth Amendment.
630 F.2d at 1110. The court reasoned
that to determine credibility of a
witness the fact finder must observe that
witness. This, the court stated, could
be accomplished either by the district
judge accepting the recommendation of the
magistrate or by rejecting that recom-
mendation after hearing additional

testimony and viewing the witnesses.

(44)

Anything less, the court held, did not
comport with due process.

In Razatos, supra, the Tenth Circuit

addressed this issue in the context of
the attorney disciplinary process.
Razatos challenged the constitutionality
of the disciplinary rules of the State of
Colorado because they did not provide an
opportunity for a de novo evidentiary
hearing before the Colorado Supreme Court
irrespective of whether the court adopted
or rejected the hearing committee's
findings of fact and its recommendations
of discipline. One significant dif-
ference exists between the Colorado rules
and the Pennsylvania rules which Stern
attacks here. As the Tenth Circuit
noted, the Colorado rules do not preclude
the Supreme Court from holding a de novo
evidentiary hearing. The Tenth Circuit

stated:

(45)

Although we have found no case
in which the Court has chosen

to hold a de novo hearing, we
cannot say that the Court does
not have the power to do so.
This plenary power is con-
sistent with the Court's
inherent power apart from rule
or statute, as well as the duty
to discipline attorneys.

It includes the discretionary
right to hold de novo hearings
whenever necessary to provide
due process.

Id. at 1434.
The Pennsylvania Supreme Court's

rules, however, provide for no such

discretionary power. As the Pennsylvania

t--

Supreme Court noted

He

n the opinio
Gdisbarring Stern, the rules of disci-
plinary enforcement "make no provision"
for the hearing Stern requested.
Notwithstanding that the Colorado
Supreme Court could have granted Razatos
an evidentiary hearing, Razatos claimed

>

he rules were unconstitutional because

ct

he did not have the absolute right to
such a hearing. The Tenth Circuit

(46)

court

The

guide.

a

-
=

980) a

“~
;
+

(

cases,

,

potn

+
4

ck ir

atta

under

—
—

~~
~-

matte

the
eo ee

,ro I: NWVF
ae a es 2 |

-)

an)
+ =

hearing. Raddatz, 447 U.S. at 682;
Razatos, 746 F.2d at 1434-1436.

Based on these facts, the Tenth
Circuit in Razatos concluded that, as in
Raddatz, due process rights are ade-
quately protected where the court
accepts the recommendation of the hearing
body, notwithstanding that the court
which acts as the ultimate decision maker
has not personally seen and heard the
testimony. Raddatz, 447 U.S. at 682;
Razatos, 746 F.2d at 1437.

Significantly, however, as in
Raddatz, the court in Razatos expressly
reserved decision on the question of
whether due process would require the
right to such a hearing if the court were
to reject the hearing body's findings of
material fact and credibility, as the
Supreme Court of Pennsylvania did in

tern's case. Moreover, the Tenth

(48)

Circuit implied it would seriously
question the constituticnality of a
reviewing court rejecting such findings
on a cold record, stating:

Our decision is limited to the
Situation presented by this
case. Here, the Colorado
Supreme Court evaluated the
recommended findings of fact of
the Hearings Panel, found

them supported by clear and
convincing evidence, and
adopted them. We do not reach
the question whether due
process would have required a
de novo hearing if the Court
had rejected or modified
findings of fact based on
contested credibility assess-
ments. See Raddatz, 447 U.S.
at 660, i. 7.

Razatos v. Colorado Supreme Court, 746

£.24 8t. 1437.

As the Fifth Circuit in Louis
squarely faced the issue left open by
this Court in Raddatz, the question left
open by the Tenth Circuit in Razatos must
be squarely faced by the federal courts

in Stern's case. Using Louis as a guide,

(49)

the federal courts should similarly
conclude that the Pennsylvania Supreme
Court violated Stern's right to due
process when it rejected findings of
material fact and credibility of the
hearing committee and disbarred Stern on
the basis of its substituted findings
which it reached upon review of a cold
record, all without affording Stern the
right to an evidentiary hearing. More-
over, the federal courts have the power
to make this determination and to ensure
that a state's procedures respecting the
bar do not violate the Constitution. As
the district court said in Rogers, that
was the very point of Feldman. 590

F.Supp. at 106.

(50)

CONCLUSION

For the above stated reasons, a
Writ of Certiorari should issue to review
the judgment and opinion of the Thir

ircuit Court of Appeals.

Respectfully submitted,
_— me.
) Pa
oe “— x L eae
ARTHUR W. LEFCO, ESQUIRE
ALAN C. MILSTEIN, ESQUIRE

‘

Attorneys for Plaintiff

Of Counsel:

MESIROV, GELMAN, JAFFE,
CRAMER & JAMIESON

15tn Floor, The Fidelity Buildin
Philadelnhia, PA 1910
(215) 893-5000

hu ov
09) e
Q rd
Ay 09) —
tH f:
4 6; OD)
Ww) w G
m™ 4)
[x] =
(Q 10] G4
=.| oO
[x] 4
>> 4
pV wo
oo G
(Q {J 9)
Bo
[yy > 4J ‘
* G4 )
rd G4 hy
ra 4) O S
© hy O
4 wv @) ©
=) 8) :
UO =
b QQ 1)
[xy 1) ri} $4
ba ha 4) Q,
f 1) 1) Ww) 7
ed Em WY)
[x] “@)
() 4 oO ”
O a)
wo) 4)
wo
; 4)

r4 YW)

—

van
~

4

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 87-1519

PETER M. STERN,
Appellant

Vv.

HONORABLE ROBERT N.C. NIX, JR,,
Individually, and as Chief Justice
of the Supreme Court of Pennsylvania;
HONORABLE ROLF LARSON, Individually, and
as Justice of the Supreme Court of
Pennsylvania; HONORABLE JOHN P. FLAHERTY,
Individually, and as a Justice of the
Supreme Court of Pennsylvania; HONORABLE
JAMES T. MC DERMOTTT, Individually, and
as a Justice of the Supreme Court of
Pennsylvania; HONORABLE WILLIAM D.
HUTCHINSON, Individually, and as a
Justice of the Supreme Court of
Pennsylvania; HONORABLE STEPHEN A.
ZAPPALA, Individually, and as a Justice
of the Supreme Court of Pennsylvania;
HONORABLE NICHOLAS P. PAPADAKOS,
Individually, and as a Justice of the
Supreme Court of Pennsylvania,
Appeliee

ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE EASTERN DISTRICT OF
PENNSYLVANIA
(D.C. Civil No. 87-3664)

Argued: February 5, 1988
Betore: TIMBERS, WINTER
and ALTIMARI, Circuit Judges*
(Filed: Feb 29 1988)

ARTHUR W. LEFCO, ESQ. (Argued)

HAROLD CRAMER, ESQ.

ALAN C. MILSTEIN, ESQ.

MESIROV, GELMAN, JAFFE, CRAMER &
JAMIESON

15th Floor, The Fidelity Building

Philadelphia, PA 19109

HOWLAND W. ABRAMSON, ESO. (Argued)
CHARLES W. JOHNS, ESQ.

1515 Market Street

Suite 1414

Philadelphia, PA 19102

Attorneys for Appellees

*This panel of Second Circuit
judges is cir egriak as a panel cf the
Third Circuit pursuant to designation
and sanicnmant ey the Chief Justice of
the United Stat 20 U.S.6. $8 29i¢a)
and 294(d) (1 982). following
certification by the Chief Judge of the
Third Circuit that there is a necessity
for the designation and assignment of
udges of another circuit to perfor m
iuties as a panel

lil the judges of
having recused t
nstant appeal.

mre

Appellant Peter M. Stern, a

former member of the Pennsylvania bar
until he was disbarred by the Supreme
Court of Pennsylvania, appeals from a
judgment entered August 17, 1987 in the
Eastern District of Pennsylvania, Marvi

Katz, District Judge, denying Stern s

application to stay the order of the

Supreme Court of Pennsylvania which

disbarred him. Appellees are the
Honorable Robert N.C. Nix, Jr., Chief

Pennsylvania, and the six other vustic
= + ‘ea )
of tnat Court

On appeal, Stern ciaims that

the Supreme Court of Pennsylvania
violated his right to due process under
the Fourteenth Amendment because the
Court substituted its own findings for
those of a disciplinary hearing
committee. Appellees, aside from other
arguments, assert that the district
court, under the doctrine of Rooker v.

Fidelity Trust Co., 263 U.S. 413 (1923),

and District of Columbia Court of

—

Appeals v. Feldman, 460 U.S. 462 (1982),

lacked subject matter jurisdiction.
We will enter a judgment
ordering that the district court judgment

be vacated and remanded with instructions

to dismiss the complaint.

(A-4)

We shall summarize only those
facts and prior proceedings believed

necessary to an understanding of the

sf
issues raised on appeal.”

Stern was admitted to the
Pennsylvania bar on November 21, 1966.
In 1980, the year in which the incidents
underlying his disbarment took place,
Stern had been a partner in the
Philadelphia firm of Blank, Rome, Comisky

& McCauley ("BRCM") since 1972. One of

1/ This summary of the facts is based
in part on a stipulation of facts
entered into between Stern and the

ns
("Disciplinary Counsel”) of the
Disciplinary Board ("Disciplinary
Board" or "Board") of the Supreme

Frankford Quaker began having

difficulty with its employees when
layoffs resulted in work slow-downs and
retaliatory vandalism. Frankford Quaker
approached Teamsters Union, Local 500
(the union representing its employees),
with a request that it control its
members. When the union refused to
cooperate, Frankford Quaker "pressured"
Stern into "carrying" $5,000 to the
President of the Union, William
O'Farrell. Stern initially refused
because he believed it would be an
illegal “pay off". Nevertheless, when

Frankford Quaker threatened to dismiss

a : "tng -
him as its attorney, Stern agreed to
1-4 a + ~ : 15 —
deliver the money and did so.
'
‘a_i an a, te a .
sont d
t of Pennsylvania in

* ¥
WY ee
~

—
— ¢

The first time Stern approached
O'Farrell the union president refused to
accept any money. Stern asserts that
O'Farrell said he would make no
concessions in consideration of any
payment. When Stern returned to
Frankford Quaker he was told to deliver
the money anyway "couched in terms of a
Christmas gift", as Stern put it. This
time, O'Farrell accepted the money.
According to Stern, O'Farrell made it
clear that he would not be influenced in
any way by the funds. Stern says that he
believed the money actually was a gift.
Indeed, the retaliating employees did not
change their behavior.

In early 1982, the Federal

Bureau of Investigation ("FBI'

") began to
investigate O'Farrell's extortion
!

activities. Upon learning of Stern s

dealings with O'Farrell, the FBI

(A-7)

requested the Justice Department to
inform the Disciplinary Board of Stern's
involvement with O'Farrell. The
Department did so.

On January 14, 1985, the
Disciplinary Counsel of the Disciplinary
Board filed a petition for discipline
against Stern. The Disciplinary Counsel
charged him with violations of various
Pennsylvania Disciplinary Ruies of the
Code of Professional Responsibility
("DR"). Specifically, he was charged
with violating DR 1-102(A)(3)
(prohibiting lawyers from engaging in
illegal conduct involving moral
turpitude); DR 1-102(A)(4) (prohibiting
lawyers from engaging in conduct

involving dishonesty, fraud, deceit or

fitness to practice law); and DR
7-102(A)(7) (prohibiting lawyers from
counseling or assisting clients in
conduct they know to be fraudulent or
illegal).

In September 1985, Stern and
the Disciplinary Counsel entered into a
comprehensive stipulation of facts, in
which Stern stipulated, among other
things, that he had violated DR
7-102(A)(7).

The Hearing Committee ("Hearing
Committee") of the Disciplinary Board
held an evidentiary hearing on September
26, 1985. The Hearing Committee filed
its report on February 27, 1986,
including findings of fact and
conclusions of law. The report
recommended, first, dismissal of the
charges brought under DR 1-102(A)(3), (4)

and (6); and, second, a private informal

(A-9)

/

admonition or private reprimand (two
relatively lenient sanctions) with
respect to the charges brought under DR
7-102(A)(7). The Hearing Committee

explicitly found that, when Stern made

expected to influence O'Farrell. The
Hearing Committee stated, "[w]le find that
the payor's (i.e. [Stern's] and/or his
client['s]) intent was to make a gift and

not buy a result.
The Board reviewed the Hearing

Committee's report and the record. On

0)
W
Ww
(9)
ry
ct
+ 4
O
oe
ct
—
ny)
ct
ct
oy
(D
df
Os
©O
©
O
=.
0)
W)
iQ
1)
J

io a bate | a = ie + J , = +
O' Farrell. Moreover it stated that

ee

there was no doubt that Stern '

"knowingly
delivered the questioned payment" and
that the payment violated the law.

On October 9, 1986, the Supreme

Ht)

Court of Pennsylvania ordered Stern to

show cause why he should not be

disbarred. Stern requested a hearing and
Oral argument. On November 10, 1986, the

Supreme Court denied the request for a

hearing, but granted the request for oral

argument. Stern and the Disciplinary
Counsel submitted briefs. The

Disciplinary Counsel requested that Stern
not be disbarred.

heard oral argument on January 29, 198

it had independently reviewed the record,

> \ - —
pursuant to a rennsyivania iaw tNnatl
eAtTIIAG co thar . NO oF 134 > >-* matrtarc >
4 4
;
rj
2) |
~ +
t 1
aS 4
4/7 ed
ov
- ’
ia
-- aa
‘
ra
‘ “
= 4
re 4
4 ;
a4
|
Ay 5
+
;
; 2.
4
P ;
>
f r4

> tF
-

.

empora

+
=

y

relimin

Pp

(1983), stating that a district court has
"no authority to review final judgments
of a state court in judicial proceedings"
and "[rJjeview of such judgments may be
had only in this Court." Id. at 482.

The Feldman Court stated, however, that a
district court would have subject-matter
jurisdiction over "general challenges to
State bar rules, promulgated by state
courts in nonjudicial proceedings, which
do not require review of a final
State-court judgment in a particular
case." Id. at 486. A district court
"may simply be asked to assess the
validity of a rule promulgated in a
nonjudiciai proceeding." Id. The Court
emphasized, however, that a district
court still does not have jurisdiction
over "challenges to state-court decisions

in particular cases arising out of

judicial proceedings even if those

(A-16)

challenges allege that the state court's
action was unconstitutional." Id.
(emphasis added). It is undisputed that
the instant case arises out of a judicial
proceeding.

Having drawn this distinction
between general and particular
challenges, the Feldman Court also stated
that a particular challenge would not be
saved by the mere fact that the plaintiff
had failed to raise the constitutional
challenge in the state court; and that,
as a result, the state court never
adjudicated the issue and Supreme Court
review therefore would be unavailable.
The Fifth Circuit had reasoned, in

Dasher v. Supreme Court of Texas,

658 F.2d 1045 (Sth Cir. 1981) (cited in

reldman, 460 U.S. at 482 n.16),

Gert.

jenied sub nom. Howell v. State

since Supreme Court review would be
unavailable and the state court had not

adjudicated the federal issue, the

di

W)

trict court would have jurisdiction

4

over the constitutional claims in such a

case. The Feldman Court, however, stated
that "[i]f the constitutional claims

court are inextricably intertwined with

t-
}

the state court's denial in

fp
a
c
Q.
=
2)
be
9)
t~

proceeding of a particular plaintiff s

state-court decision. This the district

460 U.S. at 482 n.16. "By failing to

raise his claims in state court a

ct

U

4

)

C

»

-

US
Ce

wW)

(D

~

ct

,

-

(D

&

>

fv

)

a

nn ;

|}

UW)

y ‘ > ’ A . 4 > > -
- , “ ‘

am -—-KHoO snmocrrtanete ~>7cA =

<>. ~sin a ssr - Asse & ~~, ~
ee ae ~ + -~nHo me RAI em eK TAH
* pe Ole SS Sa FT / 44 Resi rire WWM Lr oe Wd

~ ye aA H+ rerrraActs: H#HRaAt+ ——— +
alpyLawtis Ay = = er- ae oF ap F .
eee =} » co - = — *
TQ 7 a Y = = + — A i
— . + - - . — oe ~SD
> =! —7 i . wh be iF dp Sa ae ‘ - ii
~-- » ¢ - ~ > aan a ~~ > > + Fan
a Lii4 ssat 4 » Ad >
» -S hae & * s Cc WwW rn . ‘

-+-
y
+ &

cou

order and a preliminary injunction, both
of which required him to demonstrate the
likelihood of success on the merits and

irreparable harm to himself, thus

shifting the focus to the actions of the
Supreme Court of Pennsylvania in his
particular case. The complaint and the
stipulation of facts contained extensive
exposition of the specific facts in
Stern's case, which hardly would have
been necessary if the district court were
being asked only to "assess the validity"
of the rule in its general application.

the time of his appellate briefs,

169)
M .\i' > * > - - - . i a » + ¥ ~~ 7
. ~ . na “rr = : — - .
/ Raving been
briefed and argued, this matter is now

ripe for disposition.

ee

Our scope of review and the
criteria which guide us in evaluating the
evidence in attorney disciplinary matters
have been recently set forth in Office

of Disciplinary Counsel v. Keller, 509

Pa. 573, 506 A.2d 872 (1986):

Before analyzing the
testimony offered in
support of the charges it

S/ Pursuant to Pa. R.D.E. 208(e)(3),
Respondent had an absolute right to
Oral argument upon request.
Respondent, however, also requested
an evidentiary hearing before this
Court, a procedure for which the
Rules of Disciplinary Enforcement

make no provision. This writer
denied that request on November iO,
1986.

must be noted that this
Court's review of attorney
discipline is a de novo
one. Thus, we are not
bound by the findings of
either the Hearing
Committee or the
Discipiinary Board.
Matter of Green, 470 Pa.
164, 368. A.2d 245,
(1977); Office of
Disciplinary Counsel v.
Walker, 469 Pa. 432,

366 A.2d 563 (1976);
Office of Disciplinary
Counsel v. Campbell, 463
Pa. 472, 345 A.2d 616
(1975), cert. denied,

424 U.S. 926, 96 S.Ct.
1139, 47 L.Ed. 2d 336
(1976). Although we are
free to evaluate the
evidence presented before
the Hearing Committee,

In re Silverberg, 459 Pa.
107, 327 A.2d 106 (1974),
cert. denied, 456 U.S.
975, 102 $.Ct. 2240,

72 L.Ed. 2d 849 (1982), we
may be enlightened by the
decisions of these triers
of fact who had the
Opportunity to observe the
demeanor of the witnesses
during their testimony.
Matter of Green, supra;
Office of Disciplinary
Counsel v. Walker, supra;
Office of Disciplinary
counsel v. Campbell,
supra. ....Nor is the
petitioner required to

(A-20)

establish the misconduct
through direct evidence.
The ethical violations may
be proven solely by
circumstantial evidence.
Office of Disciplinary
Counsel v. Grigsby, supra;

Lemisch's Case, 321 Pa.

110, 184 A. 72 (1936);

Salus's,Case, 321 Pa. 106,

184 A. 70 (1936).

Id. at 579-80, 506 A.2d at
875.

We will first consider the
findings of fact made by the Hearing
matter, Respondent and the Office of
Disciplinary Counsel entered into
Getailed stipulations which were
ultimately adopted by the Hearing

Committee as findings of fact. The

relevant facts as set forth in those
stipulations are as follows. °/
Respondent was born in 1941 in
Philadelphia. He graduated from
Cheltenham High School, where he was
editor-in-chief of the school newspaper.
Respondent then attended Dartmouth
College, where he was vice-president of
his class and managed the campus radio
station. While at Dartmouth Respondent
won a fellowship which enabled him to
work for academic credit at the National
Labor Relations Board in Washington, D. C.
Respondent graduated from Dartmouth with
high honors in 1963 and subsequently

entered the University of Pennsylvania

Law School, where he was an editor of its

6/ Facts omitted from the Stipulations
will be provided in footnotes and in
subsequent text.

(A-42)

labor clients, including numerous clients
in the food and paper converting
industries. One of the largest of those
clients was the Frankford Quaker Grocery
Company ("Frankford Quaker"), which
served a local supermarket chain. In
1980 Frankford Quaker experienced
financial difficulties due to a shrinkage
in volume and sought the cooperation of
Local 500 of the Teamsters Union, which
represented Frankford Quaker's employees,
with regard to work assignments.

Officers of Frankford Quaker asked
respondent to deliver Five Thousand
Dollars ($5,000.00) to William O'Farrell,
President of Local 500, in the hope that
O'Farrell would not oppose the requested
assistance. Respondent initially refused
to deliver the money but eventually
acceded to his client's demands when

Frankford Quaker threatened to retain

(A-44)

a

other counsel. Respondent met with
O'Farrell on two occasions, successfully
delivering the Five Thousand Dollars
($5,000.00) on the second occasion.

Some time later O'Farrell
demanded that another of Respondent's
clients, Data File, Inc., pay O'Farrell a
Fifteen Thousand Dollar ($15,000.00)
bribe. Respondent refused and advised
Data File not to make such a payment,
whereupon he was discharged as counsel.
In early 1982 the Federal Bureau of
Investigation ("FBI") began investigating
bribes allegedly extorted by O'Farrell.
Respondent met with two Assistant United
States Attorneys and an FBI agent in or
about January, 1983. During the meeting,

Respondent acknowledged his delivery of

Frankford Quaker's funds to O'Farrell. //
Based on the information provided by
Respondent concerning O'Farrell's alleged
attempt to extort money from Data File,
Inc., the federal government obtained the
indictment of O'Farrell in the United
tates District Court for the Eastern

District of Pennsylvania. Respondent

7/ The FBI had learned of Respondent's
payment to O'Farrell from a
confidential source and had
furnished the United States Attorney
with that information. See N.T.
Sept. 2, 1985 at 9-10, 14, 47. The
prosecution was concerned that the
information concerning Respondent's
prior involvement with O'Farrell was
subject to disclosure to the defense
under Brady v. Maryland, 373 U.S. 83
(1963), as exculpatory evidence. We
find it disturbing, however, that
the United States Attorney's office
did not, upon acquiring that
information, also immediately
communicate it to the Disciplinary
Board pursuant to DR1-103.

-==- «SO

(A-46)

served as the principal prosecution

B/

witness.

In Paragraph 11 of the
Stipulations Respondent admits that his
delivery of the funds to O'Farrell in
violation of the Labor Management
Relations Act violated DR7-102(A)(7).
The Stipulations also include various
evidence in mitigation, which shall be
discussed later.

In addition to ado ting the

tipulations summarized above, the

Hearing Committee made two additional

findings of fact:

8/ Respondent did not request immunity,
but the prosecution nevertheless
immunized him as a precaution.

While the stipulations do not
address the outcome of the S8183, it
appears from the record of the
instant matter that O'Farrell was
acquitted. N.T. Sept. 26, 1985 at
122.

(A-47)

O'Farrell

Board did, however,

6.1 On the second
occasion, when O'Farrell
accepted the $5,000
profterred by Respondent,
O'Farrell told respondent
that he, O'Farrell([, ]
considered it a gift and
that he did not intend to
do anything for it.

6.2 On the second
occasion when Respondent
proferred and O'Farrell
accepted the $5,000.00,
Respondent did not expect
or intend that O'Farrell
would be influenced in
respect to any of his
actions, decisions, or
duties as a representative
of Frankford Quaker
employees.

The Disciplinary Board in its

Report and Recommendation to this Court
questicned these two findings but did not

decide whether Respondent's payment to

was a bribe or a gift. The

type of payment would violate federal

(A-48)

recognize that either

o/

/

law. This Court considers the intent
to influence a crucial factor in
determining the gravity of Respondent's
breach of our ethical standards.
Accordingly, we have independently
examined the record before us, aS is our
right and obligation, and have concluded
that the Hearing Committee's findings
with respect to Respondent's delivery of
Frankford Quaker's funds to O'Farrell are
Supported by no credible evidence.

The Hearing Committee's finding
that Respondent's payment to O'Farrell

was a mere "gift" is at odds with

af Section 302 of the Labor Management
Relations Act, 2 U.S.C. §186, is
"a criminal provision, maium
prohibitum, which outlaws all
payments, with stated exceptions,
between employer and
representative." United States v.
Ryan, 350 U.S. 229, 305 (1956).

evidence furnished by the United States
Attorney's office and with Respondent's
own testimony. In its letter to the
Board dated December 19, 1983, the United
States Attorney's Office states:

Stern explained that
he represented a client
named "Frankford-Unity,
Inc.," as labor lawyer.
The client had a dispute
with its employees, who
were represented by Local
500 of the Teamsters
Union, Stern explained
that the company was
having financial problems
and that it needed some
concessions from the union
in terms of work rules, or
in terms of having work
done by outside
contractors. The precise
nature of the dispute is
not clear to either of us
but, in any event, it [is]
clear that the following
events occurred. Stern
explained that his
clients, whose names he
did not give requested
that he give $5,000 to
O'Farrell so that
O'Farrell would
"backoff" from his
position opposing
any concessions.
(Emphasis added. )

(A-50)

The testimony of Assistant United States

Attorney Robert E. Welsh, Jr., during
September 26, 1985, hearing is to the
Same effect:

Mr. Stern told us
that he had represented a
client, and it is my
memory that he said
Frankford-Unity,
Incorporated, as a labor
lawyer. And that this
client was some sort of
trucking company that had
a labor problem. It was
represented by Teamsters
Local 500. This is in
1980 that this labor
problem occurred. The
labor problem dealt with a
dispute over work rules in
that--or job security
might be a better way to
Say ite--in that the
company wished to farm out
certain work. I don't
know what kind of work, we
did not get into that.
But the point is that the
Teamsters 500 was
resisting, Claiming and
arguing that its employees
Or its members were
entitled to the work.
This is not an uncommon
type of labor dispute.

At this point,
according to Mr.

(A-51)

a4
Lne

Stern, his clients
developed the idea of
attempting to influence
a [sic] O'Farrell with
a payment of some form
of consideration.
(Emphasis added. )

N.T. September 26, 1985,
at a3.

At the hearing Respondent
characterized his discussion wit!

Frankford Quaker's representatives

@)
O

nceerning the payment as follows:

Well, they cast
around for something tec do
and in a discussion with
me, they said, if you
can't help us by
discipline and fighting
them, and we're paying you
this retainer, and more
than the retainer
sometimes, we are going to
have to take another tack.
We are going to have to do
something else. There was
discussion about--I don't
remember the words or the
give and take) but they
said something to the
effect, we want to see
if paying him softens
his attitude. (Emphasis
added. )

N.T. September 26, 1985,
at 141.

From the foregoing it is clear
that the purpose of the payment to
O'Farrell was to influence him in his
Capacity as President of Local 500 ana
that Respondent was well aware of that
fact. O'Farrell's initial unwillingness
to cooperate serves as additional
evidence of Respondent's full
appreciation of the character of the
transaction. The impact of Respondent's
seli-serving testimony with regard to his
intent as to the effect of the payment
pales before the overwhelming evidence to
the contrary. We conclude, therefore,
that Respondent facilitated an attempt by
Frankford Quaker to bribe O'Farrell.

Respondent's testimony
establishes that he knew such a payment
would be illegal and so informed his
client: "I said, don't do it, it's

(A-53)

1

; ‘
4
.
i ;
’ s- Pe
++ *
j ;
“
*
.; he
‘
. 4
rat be
4 ¢
he ts
4
~ .
» +
~ 4
“ ~+ {

(=)

sme
sng

aus

—

hu

~ =
oe =, > am, as
I y > . > - ‘
‘ r } : |
’ . . ‘ :
_ + . . P
I I = ¢ }
. - ‘ “ : 7 >
° . > 7 . , /
t r ’ > ‘ >

a “eo - = . 2 + _— .
: eae i An a 4 a4 » as "
. , . . + - . ‘ i.
rs : 2
. aw i : s - Aa —
YT + . . > ~ ~~ + Na YT
‘ YC. =" . a . ‘ ‘ ‘~~.
~ . an - ih ¢ ne >
wa ssGaia A Wm wdd ‘ i?" ‘
*. : \A + “ee ‘ yo ~
a4 i\e ‘ ‘ a ese mA ma 44
~ssers wee + } ~ +s - + ‘
‘ =e. A AacA 4 -
‘ ~~ , “+o an , ,
= ; " wa. ho : A " y
+ . — )
‘ <> ) J+,
2 A y A —e' - a ¥
, . + . "
~ 2 ’ +
Widrad ‘ i" + ‘
’ - .
, - , " 3 Q > .
‘ ‘ Ww ‘ - - ‘
¥ ’ . _ T ¥ -
4 ‘ P ‘ wae. ha
. ‘ . ’ s->- Bs
‘ ‘ ‘ ‘ wa vv a. -
’ ’ " . ‘
A av : P “ ~
° a) ‘> * ‘, .,* > . ~~) >
i ; ¥ Ais ~ + .
= > a? ' 7 i=) ’
j.§. aw i ¥ a4
. uaat- i.e ) .* .
: : ‘ aw y ‘ .
. ‘ro, " , » .
‘ ‘ ‘ Ase ¥ 2a ‘
+ ‘ —- "otro ¥ . "
‘ ‘ ‘ aA ‘
A ‘ wa s ‘
. P ¢ . :
“ ‘ ay |
.? . 4 ’ : '2- }.
o _ | ~ > “" > i } +
_ +.* ~y vy)
i a . wa » 4A aad
> . ¢ v > " :
4 : ‘ ‘ i Ww
. aw 4
~ + vv > ™
. ow + 4 . ¢ " . °
. : : . a =
‘ .

setback to his career. His ethical
judgment was compromised by purely
selfish financial considerations. On
this record we must conclude that
Respondent committed a serious breach of
the Disciplinary Rules, violating DR
1-102(A)(3), which prohibits an attorney
from engaging in illegal conduct
invoiving moral turpitude; 22/
DR 1-102(A)(6), which prohibits an
attorney from engaging in other conduct
which adversely reflects on his fitness
to practice law; and DR 7-102(A)(7),

which prohibits an attorney from

11/ In our recent decision in Office of
Disciplinary Counsel v. Simon, 5
Pa. 312, 307 A.24@ iz (1966), tnis
Court defined "moral turpitude" as
"to J.anything done knowingly
contrary to justice, honesty,
principle, or good morals.'" Id. at
320, 507 A.2d at 1220, quoting Muniz
v. State, 575 S.W.2a 408, 411 (Tex.
1978).

counselling or assisting a client in

conduct the attorney knows to be illegal

12/

or .trauduient.)-——

We do not agree with the Office of
Disciplinary Counsel that a
violation of DR 1-102(A)(4), which
prohibits an attorney from engaging
in conduct involving dishonesty,
fraud, deceit or misrepresentation,
is established by the record. We
recently interpreted that rule in
Office of Disciplinary Counsel v.
Simon:

Although there is, in the
broadest sense, dishonesty
involved in every crime, we do
not (nor did the Board) find
that respondent's conduct
involved dishonesty, fraud,
deceit, or misrepresentation.
To charge respondent with a
violation of this rule under
the facts presented in this
case would be to make this rule
too broad and all encompassing.
The rule should be construed in
its normal sense and
"dishonesty" should not be
taken out of context. Rather,
it should be considered as it
is commonly associated with
those violations involving
theft, misappropriation, etc.
see, €.g.,

Office of Disciplinary Counsel v.

(A-59)

Having ascertained that
Respondent has committed multiple serious

violations of our Disciplinary Rules, we

(cont'd)

Lewis, 493 Pa. 519, 426 A.2d
1138 (1981).

510 Pa. at 320 n.7, 507 A.2d
at 1219-1220 n.7.

The common element in dishonesty,
fraud, deceit and misrepresentation
is deviation from the truth, as is
illustrated by our prior

disciplinary decisions. See, e.g.,
Office of Disciplinary Counsel v.
Wittmaack, Pa. , wae A. 2G

522 (1987) (failure to inform
clients of conflicts of interest;
fabrication of evidence; false
testimony); Office of Disciplinary
Counsel v. Tumini, 499 Pa. 284,

453 A.2d 310 (1982) (false swearing
before grand jury); Office of
Disciplinary Counsel v. Grigsby, 493
Pa. 194, 425 A.2d 730 (1981)
(filing sworn pleading known to be
false); Office of Disciplinary
Counsel v. Walker, 469 Pa. 432,
366 A.2d 563 (1976) (failure to
inform client of adverse influences
and conflicting interests); Berlant
Appeal, 458 Pa. 439, 328 A.2d 471
(1974) (attempted solicitation of
perjury); Montgomery County Bar

(A-60)

must now determine the appropriate
discipline to be imposed. t should be
noted first that disciplinary sanctions
are not primarily designed for their

punitive effects. Office of

Disciplinary Counsel v. Tumini, 499 Pa.

284, 288, 453 A.2d 310, (1982).

Rather, as explained in Office of

Disciplinary Counsel v. Kelier, supra:

The primary purpose
of our system of lawyer
discipline is to protect
the public from unfit
attorneys and to maintain
the integrity of the legal
system. See In re Oxman,
496 Pa. 534, 437 A.zd
1169 (1981), cert.
denied, 456 U.S. 3975,
102 S.Ct. 2240, 723
L.Ed.2d 849 (1982);
Office of Disciplinary

(cont'd)

Association v. Hecht, 456 Pa. 13,
317 A.2d 597 (1974) (false

swearing). We find that element
absent from Respondent's conduct.

(A-61)

4 9
20 A.24 Lise (3
ce of Disciplina
ounsel v. Grigsby,
Pa. i194, #25 A.2a 73
(1981). Disciplinary
procedures have been
established as a catharsis
for the profession and a
prophylactic for the
public. Office of
Disciplinary ares Vv.
Lewis, supra 493 Pa. at
528, 426. hoa at 1142.

Id. at 579, 506 A.2d at
75.

In addition to protecting the public, it
is our responsibility to seek to preserve
public confidence in the legal profession

and the judicial system. See Office of

Disciplinary Counsel v. Le

=
‘=
0]
H>
iO
WW
rd
09)

319, S27, 426 A. 26 1138, i142 (1981).

The public position
of one who is a member of
the legal profession is
one of great
responsibility. Integrity
and the exercise of good
faith in an attorney's
professional engagements
are essential for the
protection of the public,
the courts and the
profession itself. it

must be fully appreciated
that each member of the
bar is an officer of the
Court. Consequently, it
is the solemn duty of the
judiciary to insure that
the proper standing of its
officers is preserved.

See Johnson Disbarment
Case, 421 Pa. 342, 345,
219 A.2da 593, 395 (1966);
In re Davies, 93 Pa. 116,
Lae (1880).

Matter of Lecpold, 469 Pa.
364, 392, 366 A.2da 227,
230-231 (1976) (footnote
omitted).

Rule 204 of the Rules of
Disciplinary Enforcement specifies six
types of discipline ranging from private
informal admonition by Disciplinary
Counsel to disbarment by this Court.
Pa.R.D.E. 204(a). The nature of the
sanction of disbarment was recently

described in our decision in Office of

Disciplinary Counsel v. Keller, supra:

Disbarment is an
extreme sanction which
must be imposed only in
the most egregious cases,
Office of Disciplinary

(A-63)

Counsel v. Kissel, supra;
Matter of Leopold, 469 Pa.
384, 366 A.2d 227 (1976),
because it represents a
termination of the license
to practice law without a
promise of its restoration
at any future time. It
has been deemed
appropriate: where the
misconduct involves the
types of breach of trust
exhibited in this case.

As noted in Johnson
Disbarment Case, 421 Pa.
342, 219 A.2d 593 (1966):

It is the duty
of the courts to
maintain the
integrity of the Bar
and to see that
courts and its
members "do not fall
into disrepute with
the general public
through the
unprofessional or
fraudulent conduct"
of attorneys
(Forman's Case, 321
Pa. 47, 164 A. 73}.
"The power of a court
to disbar an attorney
should be exercised
with great caution,
but there snould be
no hesitation in
exercising it when it
clearly appears that
it is demanded for
the protection of the

(A-604)

public. The court by
admitting an attorney
to practice endorses
him to the public as
worthy of confidence
in his professional
relations, and if he
becomes unwortny, it
is its duty to
withdraw its
endorsement...."

Johnson Disbarment
Case, supra 421 Pa.
at 345-46, 218 A.2d
at 595 (citation
omitted).

Id. at 588-87, 506 A.Zd at
879.

Having fully considered
Respondent's serious transgressions
against our standards of conduct for
attorneys, we are satisfied that
disbarment is the only appropriate
remedy. Respondent's actions represent a
dual injury to the public. First,
motivated solely by pride and greed, he
permitted himself to be corrupted by his
own client, discarding his proper role as

legal advisor and becoming a mere conduit

disrupting proper labor-management

¢; } ~ ~f ~~ + 7 ~ - a =~ }
Such conduct will not be countenancec by

As the United States
Supreme Court stated in
Ex Parte Wall, 107 U.S.
265, 2/4, 22 $.Ct&. 369,
576, 27 L.Ed. 552 (1882)
"Of all classes and
professions, the lawyer is
most sacredly bound to
uphold the laws. He is
their sworn servant; and
for him,...argues
recreancy to his position
and office.... It
manifests a want of
fidelity to the system of
lawful government which he
has sworn to uphold and
preserve." Where one who
has sworn to uphoid the
law actively conspires to
breach it, his fitness to
practice is unquestionably
destroyed

Pa. 472, 483, 345 A.2da
616, 622 (1975), cert.
denied, 424 U.S. 9326
(1876).

Accord, Office of Disciplinary Counsel

v. Casety, 511 Pa. 177, 182-183,

512 A.2d 607, 610 (1986). Respondent has

grossly abused the privileges entrusted
to him and has debased not only himself
but also the entire Bar of this
Commonwealth, and his continued practice
would be inimical to the public interest.
In his pleadings submitted to
this Court Respondent has attempted to

mitigate the severity of his misconduct.

Respondent emphasizes his outstanding

| success as a labor attorney and his
otherwise unblemished disciplinary
record. He also points to his contrition
and his cooperation with federal law
enforcement officials. In addition,
Respondent stresses his active
participation in professional, community

(2-67)

a aa alee

and religious programs in th

Philadelphia area. Finall

i
ve
ty
Ww

U0
0
o
Q
@
ct

details the economic hardship, loss of
social and professional standing and
strain on his health and family life he
has endured in the wake of his own
misbehavior. We find that these factors
do not offset the seriousness of
Respondent's disciplinary violations or
support his contention that he remains
fit to practice law. As to Respondent's
much emphasized cooperation with the
federal authorities, the record refle
that he made his admissions only after
being confronted by federal law
enforcement officials aware of his
misconduct. Cooperation at that point
was clearly in his own seif-interest.

The same is, of course, true with respect
to the subsequent disciplinary

proceedings. We also note that the

stipulations into which Respondent
entered, while admitting misconduct, were
hardly a model of candor, and attempt to
paint as favorable a picture as possible
under the circumstances. Respondent's
involvement in professional, civic and
religious activities, while laudable is

not relevant to our basic inquiry,

| Respondent's fitness to practice law in
this Commonwealth. Moreover, without
denigrating Respondent's extracurricular
endeavors, we note that such activities
are widely employed as a means of
professional advancement. Finally, as to
the disastrous personal consequences of
Respondent's well-publicized misconduct,
we must conclude that pleas for sympathy
must not obscure this Court's
responsibility to protect the public from

unscrupulous lawyers. Respondent's

downfall is entirely of his own making

(A-69)

———————

. " *
.
.

and prominence in the legal community
serve to magnify his ethical breaches.
It is entirely apprcepriate to expect the
most meticulous adherence to ethical
standards from those with exceptional
ability. Such attorneys should serve as
models for the other members of the Bar
and as public symbols of the highest
professional ideals. When a member of
the elite, such as Respondent, debases
himself and violates the law for sheer
personal gain, public confidence in the
legal profession is destroyed.
Respondent has no right to

expect less than disbarment.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1909%3A1. Public record. Not legal advice.