Brief in Opposition to Petition — Goldner v. Silver

| | FILED”

7% SoeK Aenea DEC 10 1964 |

JOHN & DAW, OLERK |

IN Tes at

- Supreme Court of the Bnited States

| OCTOBER TERM, 1964

No. 415

DAVID A. GOLDNER,

| | Petittoner,

“EDWARD S. SILVER, District aia Kings —

) nana of New z= om

| Respondent. :

BRIEF IN OPPOSITION. TO PETITION FOR

WRIT OF CERTIORARI | '

| V Asnox KE. Koora

Acting District Attorney

Kings County -

Srantey M. Meyer

Assistant District Attorney

Of Counsel

<Q 32 Case Pass Inc., 421 Hudson St., N.Y.—ORegon 5-4540

2 * INDEX

a

Siatenient esses jiensasgeveesad kgawines

Previous Proceedings. cena ae. sleecececeeeess

The Referee’s Findings ...... aevweues lelshasdns

poum I—Attorneys oceupy a unique relationship to;

the public and-are subject to supervision of the

_ judiciary to whom they owe an obligation of com-

© . plete frankness .and cooperation wes erencceeeees z

‘Pow IT —Petitioner was not denied. due process of

law but. was given all procedural requisites in-

herent in the concept of a fair hearing as ape 3

cable to proceedings of this type ...2.2.....6%.5.

Pow I1I—The findings of the Special Referee, were

not improper bec ecceseccces settee ese eeseeeedes

a o* eeeeeeeeeeeee eee "eee eeereesreaeesese

2

Citations

| Alfaro v. Joint Legislative Committee on Préfes-

. sional Boxing; 36 M. 2d 1018, 234 N.Y.S. 2d 164 .

,Ames v. Dubitisky, 70 N.Y.S. 2d 706°.....,.........

_ Application of Johnson, 128 N.Y.S. 2d 874 .........

Application of baie to 283° ae. Div. 808, 129'N. YS.

, | eae euukeua ui eiGa tac Gkks ac nee

Danes v. Walsch, 145 Me. 107, 72 A. 2d 813 a

oweny v. Board of Regents, 347 U.S. 442, 74S. Ct:

15

~—

16.

&

ii

f PAGE

Beilan v. Board of Public Education, School: District

of Philadelphia, 357 U.S. 399, 78 S. Ct. 650........ 8

Boyd v. United States, 116 U-S. 616, 6 8. Ct. 524 .... 8

5

_ Bradley v. Fisher, 13 Wall 335, 80 U.S. 335 ......... a

Niklaus v. Simmons, 196 F. Supp. 691

sf

AA

Cafeteria and Restaurant Workers Union, Local 473,

AFL-CIO v. McElroy, 367 U.S.'886, 81 S..Ct. 1743 10

= Hurley, 366 U.S. 117, 81S. Ct. 954 . .5, 6, 10, 13, 14

Ex Parte Wall, 107 U.S. 265, 2.8. Ct, 569”.......4,7, 10, 15

Greene v. McElroy, 360 U.S. 474, 79'S. Ct. 1400 ..... “16

‘Imre Genser, 15 N.J. 600, 105 A. 2d 829 .......... 1. 56

In re Judicial Inquiry, 19 M. 2d 491, 189 N.Y.S. 2d: 79 6,8

In re Oliver, 333.U.Ss 257, 68 S. Ct. ee rrr 15

In re Schofield, 362 Pa. 201, 66 A. 2d 675 ........... 5

Justice v. Lang, 52 N.Y. 323 ..........+++, are | ie

‘Lathrop v. Donohue; 367. U.S. 820, 81 8. Ct. 1826 . 8

_ Lerner v. Casey, 357 U.S. 468, 78S. Ct. 1311 ,....... ia, a

Malloy v.Hogan, US. _ ,-848.Ct.1489..... . 14

Mapp v. Ohio, 367 U.S. 643, 81 St. Ct. 1684,...... oe 2

Matter of Blumstein, 253 App. Div. 826, 1 N. Y.S. 2d :

EE SLAG SAU ERUN SES ANOS 9 EAS OUST REAR Cee 8

Matter of Broome, 13 A.D. 2d 657, 213 N.YS. 2d ies

Pe nr ey rrr ror reer ree eee 6, 13, 15

. Matter of Chartoff, 16 A.D. 2d 277, 227 N.Y.S. 2d 578 6

Matter of Kaplan, 13 A.D. 2d 231, 216 N.Y.S. 2d 310 6,13 ©

Matter of Marlow, 225 : Div. 252, 232 N.Y. Supp.

wee was ‘ CUSOECEEEOVECC+UCEHELCOC OCHS EERO So

Matter of Mogel, 18 A.D. 2d 203, 238 N.Y.S. 2d”

OT eee ee eer Ore ayer er 6, 10, 13, 15

Matter of Rothenberg, 18 A.D. 2d 397, 239 N.Y.S.

ee ney

Matter of Zauger, 266 N.Y. 165, 194 N.E.72........

N.A.A.C.P. v. Button, 371 US. 415, 83 S. Ct. 328 ....

ORM AD

/ ti ) ; : ee a

al ee ee PAGE

_ People v. Loria, 10 N.Y. 2d 368, 179 N.B.2d 478... . 14

People v. Terra, 303 N.Y. 332, 102 N:E. 2d 576 ...... 15

Randall v. Brigham, 74 US. 532, 19 L. Ed. 285 ...... 4,10

‘Sackler v. “Sackler, 16 A.D. 2d 423, 229 N.Y.S. 2d 61. 13

_ Sharkey v. Thurston, 268 N.Y. 123, 196 N.E. 766 . 13

Theard v. United States, 354 U.S. 278,77 S. Ct.1274 5°

Tot v. United States, 319 U.S. 463, 63 S. Ct. 1241... 15

United States v. Anonymous, 215 F. Supp. 11] .. se "9

Welanko’s Case, 99.N.H. 413, 112 A. 2d 50......... a

%

pences Court of the Rnited States

October Term, 1964

: No. 415

es

Davi A. GoLpNER,

: Petitioner, .

—against—

Epwarp 8. Suver, District Attorney, Kings County,

State of New York,

Respondent.

»=

ww

BRIEF IN OPPOSITION TC PETITION FOR

WRIT OF CERTIORARI

Statement

Petitioner seeks a Writ of Certiorari in order to review

a judgment of the Court of Appeals of the State of New

York, entered on March 26, 1964, affirming an order of the

Supreme Court of the State of New York, Appellate Divi-

sion, Second Departinent, dated December 27, 1961, dis-

barring petitioner and ordering his name struck from the

roll of attorneys (15 A.D. 2nd 558).

Previous Proceedings

‘The proceedings below were begun by a petition of

Edward §. Silver, District? Attorney of Kings County,

verified on July 15, 1960, charging petitioner with 33 acts

9°

' of misconduct, the issues having been then referred to’Hon.

‘J. Irwin Shapiro, Special Referee, to hear and report, to- —

gether with his recommendations, by order of the apps

Division dated October 31, 1960.

The Special Referee heard testimony from December 1, -

1960, to December 7, 1960, and filed his report, dated March

6, 1961, in which ‘he made four conclusions and recom-

mended disbarment. The motion to confirm the Special

Referee’s report was granted thereby causing petitioner’s

disbarment and a motion to stay respondent’s motion to

confirm the Referee’s report was denied on June 21, 1961.

Petitioner moved to set aside the report of the Referee

which was denied by order dated September 21, 1961, re-

argument of which was denied by order dated October 5,

1961. A further motion for reargument and reconsideration

was denied on May 13, 1963. The Court of Appeals of the

State of New York affirmed the order of disbarment with-

“out opinion on March 26, 1964 (14 N.Y. 2d ‘593). |

Prior to the institution of the. proceedings before Hon.

J. Irwin Shapiro, ‘the Judicial Inquiry conducted an in-

vestigation in 1958, at which petitioner appeared and tes-

' tified on two occasions and to which he delivered financial

- books and records pursuant to a subpoena duces tecum.

These books and records were not physically returned until

after the conclusion of the proceedings before the Special

Referee. The subject under investigation was solicitation

and related unethical practices in Kings County. Petitioner

moved for the return of his records in November, 1958, in

the Appellate Division and in January, 1959, before the ,

Special Term of ~ Supreme Court. = motions were

denied.

3

Regarding the hearing before the Special Ribs, peti-

tioner was represented by counsel, presented evidence,

cross-examined witnesses, was given many months to*pre-

pare his case and was-served with formal charges and par- __

ticulars of the charges. Not once during the hearing did

_ petitioner object, complain, ask for an ajournment or raise

the issue that the retention of his records was illegal or

that"he had been prevented from preparing his defense.

He never alleged that he was prevented from copying,

_ using or working with his records. In the yeers that have

passed subsequent to the return of the books and records,

petitioner has not claimed or attempted to show in the

_ Appellate Division. The Court of Appeals, this or ‘any

-;other Court that the records contained items which would

have been helpful to him at the hearing before the Special

Referee. ,

The Referee’s F indings

The Special Referee concluded that petitioner was unfit

to remain a member of the profession of the Law based

- on the following four findings which were — by.

the Appellate Division. _-

1. That the ‘Respondent failed to provide clients’’ in, -

some instances ‘‘with statements relative to the

settlement and disposition of their cases’’ as re- -

quired by Rule 4-B of the rules of the’ Appellate

Division First Department. (Charge 7-v, dealt

with at p. 47 of this report.) nn

2. That ‘‘Respondent divided fees for legal services

with*persons other than lawyers for services ren-

dered by such persons‘in the settlement of legal

claims. or suits in violation of Canon 34’’, to wit,

with one James Citroen. (Charge 7-z, dealt with

at p. 51 of this report.)

3. That ‘‘Respondent wilfully procured and induced ~

a clients and witnesses”’’ specifically Dominick Dascoli

and Gilbert Zucker ‘‘to testify falsely on hearings

being conducted by an additional Special Term of

the Supreme Court into the conduct of attorneys

and others’’ and more specifically ‘‘that Respond-

ent told them to state that they had received the

proceeds of certain checks issued in their respective

names when, in truth, they had not.’’ :(Charge 7-aa,

dealt with at p. 54 of this report) and,

4. That Respondent committed perjury before’me in

_ his testimony with reference to the so-called ‘‘yellow

sheets’? and the alleged retention. by his various

clients of the proceeds of the ‘‘smaller checks”

herein dealt with.

POINT I

Attorneys occupy a unique relationship to the public

and—are subject to supervision of the judiciary to

whom they owe an obligation of comprete frankness

and cooperation.

Since the origins of the common law, attorneys have oc-

cupied a unique position in our society in terms of their

role in the need fur public trust and confidence in our

judicial system. Their conduct, both professional and other-

wise, has been traditionally supervised by the judiciary and

they have been subjeet to disciplinary action when their

standards have fallen below that thought to be in the best

interests of their profession.. Randall v. Brigham, 74 U.S.

532, 19 L. Ed. 285, Ex Parte Wall, 107 U.S. 265, 2 8. Ct.

569; Theard v. United States, 354 U. S. 278, 77 8. Ct. 1274.

In re Schofield, 362 Pa. 201, 66 A. 2d 675;.Welanko’s Case,

99 N.h. 413, 112 A. 2d 50; Barnes v. Walsch, 145 Me. 107, |

72 A. 2d 813; In re Genser, 15 N.J. 600, 105 A. 2d 829. In

Cohen v. Hurley, 366 U.S. 117, 81 S. Ct. 954 the Supreme

Court said at pages 123-24: |

“‘History and policy combine to establish the: pres-

ence of a substantial state interest in conducting an

investigation of this kind. That interest is nothing

less than the exertion of disciplinary powers which

English and American courts (the.former primarily —

through the Inns of Court) have for centuries pos-

sessed over members of the bar, incident to their |

broader responsibility for keeping the adrhinistra-

_ tion of justice and the standards of professional con-

. duct unsullied. t only is the practice. of such

judicial investigati ns long-established, but the sub-

ject matter of the present investigation does not lack —

a rational basis. It is no less true than trite that

lawyers must operate in a threefold capacity, as self-

. employed businessmen as it were, as trusted agents

of their clients, and as assistants to the court in

search of a just solution to disputes. It is certainly

not beyond the realm of permissible state concerns

to conclude that too much attention to the business

of getting clients may be incompatible with a suf-

ficient devotion to duties which a lawyer owes to. the

court, or that the ‘payment of awards to persons

bringing in legal business’ is inconsistent with the

personally disinterested position a lawyer should

maintain.’’

: It i is needless to belabor the importance, for preserving

the integrity of the bar, but regulation has been extended °

into areas of business transactions of attorneys and other

? @

dealings although the attorney-client relationship does not

exist, attorneys having been held to owe a duty of absolute

good faith to the public which must be reflected in conduct

of the highest moral character. Matter of Zanger, 266

N.Y. 165, 194 N.E. 72; Matter of Chartoff, 16 A.D. 2d 277,

227,N.Y.8. 2d 578; In-re Genser, 15 N.J. 600, 105 A. 2d 829.

_ In keeping with this special status of attorneys, it has

been recognized in most quarters that when the super-

_ vision discharged by the judiciary results in disbarment or

disciplinary proceedings of some type, such proceedings are

‘not criminal in nature, the.discipline to be meted out not

being a criminal sentence and punishmert being neither the

aim or result of the proceedings. Cohen v. Hurley, supra;

Randall v. Brigham, supra; Ex Parte Wall, supra; Matter

of Rothenberg, 18 A.D. 2d 397, 239 MAY.S. 2d 591; Matter

of Mogel, 18 A.D. 2d 203, 238 N.Y.S. 2d 683; Matter of

. Broomé, 13 A.D. 2d 657, 213 N.Y.S. 2d 821; Matter of Kap-

lan, 13 A-D. 2d 231, 216 N.Y.S. 2d 310; In re = In-

quiry, 19 M. 2d 491, 189 N.Y.S. 2d 79.

This sentiment was put forth i in Cohen v. Harley, supra,

at pages 126-27 :

‘“‘A State may rationally conclude that the conse-

quence of disbarment is less drastic than that of a :

prison term for contempt, albeit arguments to the

_ contrary can be made as well. It may also rationally

conclude that procedures resulting in greater pre-

ventive certainty are warranted when what is in-

volved is the right to continue to occupy a position

affording special opportunities for deleterious con-

duct-opportunities, indeed, created by the State’s

original certification-of the petitioner’s merit. In this —

regard all that New York has in effect held is that —

7

petitioner, by resort to a- eile: against self-

incrimination, can no more claim a right not to be

. disbarred for his refusal to ‘answer with respect to

matters within the competence of the Court’s super- |

visory powers over members of the bar, than could

a trustee claim a right not to be removed from office

for failure to render accounts which might incrimi-

nate him. Finally, where illegal or shady practices

on the part of some lawyers are suspected, New

York @uld rationally conclude that the profession

itself need not be subjected to the disrespect which.

would result from the publicity, delay, and possible

ineffectiveness in their exposure and eradication that

might follow could miscreants only be dealt with

through ordinary investigatory and __ prosecutorial -

processes. ‘If the house is to be cleaned, it is for

those who occupy and govern it, rather than for

' strangers, to do the noisome work.’ People ex rel.

Karlin v. Culkin, 248 N.Y. 465, 480, 162 N.E. 487,"

493 (Cardozo, J.).

These bases for aitordinig a procedure in such

judicial inquiries different from that in criminal

prosecutions are more than enough to make wholly

untenable a contention that there has here been a

denial either of due process or. of equal protection.’ 3

This position was not unique since the Supreme Court

has always taken this view. The Court wrote in Ex ; Parte

Wall, supra 288, that a disbar ment proceeding was:

‘In its nature. civil, and collateral to any criminal

prosecution by. indictment. The proceeding ‘is not.

for the purpose of punishment, but for the pur pose

of preserving the Courts of justice from the official

ministration of persons unfit to practice in them.”

8

Inherent in the Court’s power to supervise the dealings

of attorneys is the power to examine them under oath and

scrutinize their financial and professional records, the right

to subpoena having been long established. Matter of Blum-

stein, 253 App. Div. 826, 1 N.Y.S. 24 598; Matter of Marlow, '

225 App. Div. 252, 232 N.Y. Supp. 578; In re Judicial In-

quiry, supra. There are also numerous other examples of

. government or regulatory bodies properly exergising con-

trol over professional or business groups where proceed- fi

ings evolving from such control must be viewed as_differ-

ent from the normal concept of state action in terms of

penal proceedings. Barsky v. Board of Regents, 347 U.S,

- 442, 74 S. Ct. 650 (Medical Profession) ; Beilan v. , Board

of Public Education, School District of Philadelphia, 357

U.S. 399, 78 S. Ct. 1317 (teaching) ; Lerner v. Casey,. 357

U.S. 468,78 8. Ct. 1311 (transit employee) ; Boyd v. United —

States, 116 U.S. 616, 6S. Ct. 524 (state banks) ; Application

of Johnson, 128 N.Y.S. 2d 874, modified sub. nom. ; ;Applica- .

tion of Weil, 283 App. Div. 808, 129 N.Y.S. 2d 501 (horse -

racing); Alfaro v. Joint Legislative Committee on Profes-.

sional Boxing, 36 M. 2d 1018, 234 N:Y.S. 2d 164 (boxing).

The right of the Courts to exercise supervision over at-

torneys was also recognized by Mr. Justice Harlan and —

Mr. Justice Frankfurter in a concurring opinion in Lathrop’

_y. Donohue, 367 US. 820, 849 and in his dissenting opinion

in N.A.A.C.P. v. ‘Button, 371 US. 415, ‘456, 83 S. Ct. 328 Mr.

Justice Harlan said:

‘‘But the regulation of onium’ standards for

members: of the bar comes to us with even deeper

roots in history and policy, since courts for centuries

' have possessed disciplinary powers incident to the

administration of justice.”’ ”

a

« . ¢ 9

Similar conclusions were reached by Judge Delehant i in

Niklars v. ‘Summons, 196 F. Supp. 691 wherein it was held

that disbarment is a matter within the perogative .of the

State, the right te practice law not arising from the United

‘State- Constitution. The Nebraska. disciplinary proceeding

was viewed as being neither civil nor criminal, a view taken

? by New’York, and the requirements of due process had been

_ met. Such. requirements which were alluded to by the Court:

‘were also present:in‘the case at bar. Specifications were

filed. The respondent had been represented by counsel. The

matter had been referred to a Special Referee who made a

report after conducting a full hearing. Exceptions were filed

and a decision was made by the Court after due considera-

tion. See also United States v. Anonymous, 215 F. Supp.

111, 113. .,

Petitioner had an stiigstion to respond to inquiry regard-

ing his behavior and to make available his entire financial

data. His duty was nothing less than —- frankness .

and. cooperation.

POINT Il

Petitioner was not denied due process of law but

was given all procedural requisites inherent in the con-

cept of a fair hearing as appeals to proceedings of

this type.

The sdiiliiie of the _— basis of the disciplinary pro-

ceedings in this case being unassailable, the question arises

as to what standards of due process must be afforded a

respondent. The very nature of due process negates any

concept of, inflexible procedures universally applicable to

- every imaginable situation but is. unfixed and based upon

~. 10

consideratioris of time, history, reason and past course. of

. decisions. Cafeteria and Restaurant Workers Union, Local —-

473, AFL-CIO v. McElroy, 367 U.S. 886, 81 S. Ct. 1743. Dis-

ciplinary proceedings not being penal in nature, it has been

held that they need not be formal, nor does the burden of

proof beyond a reasonable doubt exist. Ex Parte Wall,

supra; Randall v. Brigham, supra; Matter of Mogel, supra.

Procedures can be adopted which considered as.a whole in

view of the nature of the proceedings may be different from

those normally required in criminal prosecutions. Cohen

v. Hurley, supra.

Petitioner complains that his books and records were not

physically returned to him prior to the hearings before the

Referee thus depriving hini of an opportunity to prepare a

defense, a right which is concededly included in the concept

of fair procedure. The right to which he is entitled though

is the opportunity to prepare a defense or explanation and

if he is not handicapped in doing so even though his books.

may be retained illegally, which we argue was not the case

here, his‘rights of due process are not violated. Petitioner

bases his contention that the books were ‘illegally retained ~

. on his position that no order existed sanctioning the im-

pounding of such records. Yet, he states that he moved for

their return in the Appellate Division and then in the Su-

preme Court, both motions having been denied. It is an

exercise in semantics to say that an order denying. the.

request for the return of the hooks should be viewed differ-

ently than one authorizing their retention. ‘The only differ-

ence between the two-is the identity of the party initiating —

the motion, the isaues litigated and the principles considered

therein being the same. The denial of these motions were

spfficient authority for retention of the records, if such au-

thority be required by way of Court Order. Implicit in peti-

b. ; ‘

~

+ ae

. toner’ 8 argument that no order existed for the. retention

law, that retention would be proper under certain circum- —

stances. Is it not true then that where such records will be

offered in an anticipated disciplinary proceeding involving

the special relation of an attorney to the public that there

* isa duty to retain them? There was ample justification for

| eee these records and — — for mare

them. ;

It is paramount to remember that petitioner’s “essential,

. claim is really not that the refusal to return his books con-

- ' stitutes deprivation of his constitutional rights but that his

right to prepare his defense was interferred with by their

retention. Assuming arguendo that it could be concluded

_that petitioner, although he did not have physical posses-

sion of these records, did have the opportunity to examine .

them, work with them and copy them, his right to prepare

his defense would have remained inviolate. What then _

occurred in the case at bar? N owhere does petitioner claim

that he was ever denied access to these books and nowhere

does he’deny ‘that he or his representatiy _.. were allowed

to work with them. This omission speaks volumes, for the -

concept of due process does not dictate that a person make

use of his opportunity, but only that it be availableto him.

This. is not only true if petitioner did not make use of

this opportunity but more so if he did. Petitioner has also

_ hot shown how the physical retention of these records have |

handicapped him. The fact is, the only demand petitioner

ever made, via motion and letter, (SR. 181-183) was for.

the physical return of these records. He never asked ac-

cording to this record, that he be allowed to use, work with,

_ or od them. Likewise, at the outset of the hearing no

_ of his records must be the recognition, which is founded on - -

12

“objectign 1 was made nor was this i issue ary in any form.

At the beginning of petitioner’ 's case (H. 388) nothing was

said, nor was objection madg when petitioner himself, tes-

tified (H. 425). There was no objection’made when the

accountant for the petitioner below testified (H. 210) nor

when he referred to these records. Neither was a question

. raised when the accountant referred to his work sheets

(H. 215) although he testified at great length. Actually,

( petitioner was prepared to meet the testimony of the Dis-

. trict Attorney’s expert because petitioner introduced much

documentary evidence in an effort to dispel the statements

of the accountant (H. 450, 452-57 464, 471, 483, 493) and

testified at great length regarding his checks (H. 753-57).

Petitioner was first.apprised of the areas into which in-

vestigation was being conducted by his questioning at the

Judicial Inquiry and was later specifically advised by the

specifications and bill of particulars served on him. ‘He

was given exact notice of the charges against him and had

many months to prepare his case. The tecord of the héar- ©

ings shows that he did so. He introduced evidence, called -.

witnesses, cross-examined and was afforded every oppor-

tunity to controvert or explain the charges. He never raised

his claim that he had been deprived of an opportunity to

prepare a defense nor asked for an adjournment at any

point in the hearings. There is no doubt that Special

Referee Shapiro would have accommodated him had such

a request been made. Even after the hearings were com-

pleted when the Referee gave petitioner time to submit a

brief this issue was not raised (H. 781-82).

Petitioner sought to demonstrate below that the reten-

tion of his records handicapped him by arguing that he

_ could have explained the division of settlement monies re-

13

garding a client named Dascoli. .This argument was not new

- and is significantly omitted from his brief on this applica-

tion. It was made in the same language by him at the hear-

ing (H. 276). An examination of the records in this case

will show that this holds: true regarding all of the items

testified to by the expert witness. Petitioner has failed to

_ show even now that any information he could have learned

from these records, if in fact he didn’t examine them,

would have altered in any way anything that occurred at

the hearing. — ,

A complete opportunity was presented petitioner to de-

' fend these proceedings includirig all elements of fair Pro-

cedure and notice applicable to actions of this type. He did

not raise his claim at any time during the hearings and has

not shown even now how he has been prejudiced. |

The retention of petitioner’s records could not consti-

tute an illegal search or seizure since this was not a crimi-

nal proceeding. r,¥. Sagkler, 16 A.D. 2d 423, 229

NYS. 24 a tiie CF ept: wal (even to’ petitioner in

terms of procedure calculated to provide him with a fair

hearing than has been required by law. Sharkey v. Thir-

. ston, 268 N.Y. 123, 196 N.E. 766; Ex Parte Wall, supra;

Matter of Mogel, supra; Ames v. Dubinsky, 70 N.Y.S. 2d

706; Cohen v. Hurley, supra; Matter of Broome, supra;

_Matter of Kaplan, supra.

_ It is alleged that Mapp v. Ohio, 367 U.S. 643; 81 S. Ct.

1684 was decided after petitioner’s disbarment but before

the pending appeal was decided and that whether the de-

cision is to be applied retroactive to this case is an issue

here. Further it is claimed that a retroactive application

would dictate a reversal. This is plainly not so. The Court

of Appeals has already decided that Mapp is to be applied

14 ? =

ohenineeaien York where appeals are still pending,

People v. Loria, 10 N.Y. 2d 368, 179 N.E. 24 478 and since

Mapp was actually discussed in the briefs and upon argu-

- ment in that Court in this case, it is evident that the Court .

of Appeals considered whether the obtaining and retention

of, petitioner’s records constituted an illegal search and

seizure. Malloy v. Hogan, US. ~ ,848. Ct. 1489

is not really applicable because in this case oetitiense never

refused to answer questions or give evidence on the grounds

of self-incrimination. The statement in Cohen v. Hurley,

supra, 125 that:

“Basic to consideration of this aspect of pelttinnite

case is the fact that the State’s disbarment order

was predicted not upon-any unfavorable inference-

which it drew from petitioner’s assertion of the .

_ privilege, (citations omitted) nor upon any purpose .

to penalize him for its exercise, but solely upon. his

refusal to discharge obligations which, as a lawyer, <a

he owed to the court.’’ .

is even more applicable with respect to the case at bar

than the Cohen case. No privilege or claim was raised at

any stage of the proceedings and no showing of a lack of

reasonable opportunity to prepare a defense, which con-

cededly is due petitioner, has ever been shown.. The high

duty owed by an attorney to the judiciary as well as the

logics: and well founded view of the proceedings below as _

being non criminalgsustain the legality of requiring. com-

plete financial disclosures such as occurred in the case at

bar.

°

™

POINT Ill

The findings of the Special Referee were not

The third and fourth findings of the Special Referee it

is claimed were objectionable bécause petitioner had no

notice of them. This is not improper because the Referee

had no way of foretelling prior to the hearing that the cir-

cumstances would occur that would support these findings.

When such is the case, there is no tenet of law preventing

proper action by the hearing authority. Ex Parte Wail,

supra; Bradley v. Fisher, 13 Wall 335, 80 US. 335. The.

Referee can draw all reasonable inferences from the evi-

dence presénted-which reason and experience dictate. This

would be true even if the instant proceedings were-criminal

but more so since they are not. Tot v. United States, 319

US. 463, 63 S. Ct. 1241; Justice v. Lang, 52 N.Y. 323;

People v. Terra, 303 N.Y. 332, 102 N.E. 2d 576; Matter ¥

Mogel, supra; Matter of Broome, supra.

The result of the Referee’s conclusion had no penal effect

‘and by no stretch of imagination could petitioner have been

deemed guilty of a crime. These findings were within the

function of the Referee and were carefully considered by

the: Appellate Division before its decision was rendered.

The case of In re Oliver, 333 U.S. 257, cited by petitioner

at page 23 of his brief is inapplicable. There the inquiry

was being conducted by a ‘‘one man grand jury’’ and the

defendant was not afforded an opportunity to be repre-

.8ented by counsel or have a full and fair ‘heari ing. The

adjudication of contempt was also largely: based on the

testimony: of one witness who had previously testified in

16

_ secret and who was not subjected-to-cross examination by

the defendant; Likewise'in Greene v. McElroy, 360 U.S.

. 474,798. Ct. 1400, cited by petitioner, the accused was also

not permitted to confront or cross examine witnesses nor -

' was he allowed to examine files, minutes or records on which

_ the revocation of his security clearance was based. The

procedures below were imminently fairer in this case than

in any other case referred to by petitioner. |

‘CONCLUSION

‘The petition for the Writ of Certiorari should be

Dated: Brooklyn, New York

December 1, 1964.

Respectfully submitted,

Aazon E. Koora

Acting District Attorney.

Kings County

. Stantzy M. Meyer

Assistant. District Attorney

Of Counsel

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