Petition for Writ of Certiorari — Zuckerman v. Greason

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“LIBRARY | |

SUPREME COURT. U, 5 ae BEC 18 1967

: fee Jorin F. DAs, CLERK

‘> _iIy THE

ein °

“Supreme Court of the Buited States

October Term, 1967..

927

<4 inte IN THE Marrer |

OF .

LANDON ZUCKERMAN and SAM HABER, |

Petitioners,

against

SAMUEL GREASON,

Respondent.

~~ - “= ae

——— - — — ——

_ Petition for a Writ of Certiorari to the Court of Appeal

of the State of New York.

A ow

—— - —— 4

EXMANUEL REpriEtp,

‘Counsel for Petitioners, . ==

37 Wall Street, |

_ New York, N. Y. 10005 :

212 HA 2-1023. a

THE Rascauts Company, Imo., New York, N. Y. rma RE (2-6978—1967

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* ” Table of Contents. Paces

Met oon ae | Page

‘Opinions Below io ita sels

ae Jurisdiction ie oF eorovnmeenavarsovninntiasveonerene? 62

Questions Presented ° , inten iceoeiaaaaiin 2

. Statute Involved ss ect se eas eM

iiaioseaditen covieese eee ) eso

Stage and Manner of Wilahian Federal Questions ae

_ Reasons for Granting the Writ | Roe 7 7

Conciusioy. For the foregoing substantial reasons,

this petition for ‘a writ of certiorari should be

_ granted -....... :, eouuapeacae 12

Appenpix A paints Be | ae ~~

poremean ates Eyed sa a2 23 : 15

Ain OO Sas te Bien ateintetin |

Appenprx pea : oo - : Soe 23

- isintamsiid D aaa : sie | 3 Reo eee 95 *

) Appenvix K. o ae: a ee

pee Po: ee bet ba Teak ee "99 A

Aveaircx G Seasenete : gee a ae 34 |.

| | Aveanonx H “ : 3 ERO. ee Mie 46.

‘In re Oliver, 333 U. Ss. 257 - PLSD a ISON RONAN 11

Page

| - APPENDIX [ .... , um tae siaclal Liaise 48

CASES. = -

Anonymous v. Baker, 860 U. S. 287 oobasbutinemfensonnrornservoens ay

_ Bouie v. City of Columbia, 378 U. 8. 847 cnn 12

Calder v. Bull, 3 Daling 3860 ....cc.ceccecsessnetneernes - 49)

Cohen v. Hurley, 366 U.S. 17 ee. 2, 4, 6, 8, 9, 10

Communist Party of the United States v. Subversive :

| Activities Control Board, 254 F. 2d 314 ......... 10

Garrity v, eo ‘Jersey, 385 U. S. 493 Ci 8.

Habier, hoc S. , 87 S. Ct.. 1016 cieiabaadiandaneiiidatead

~ Kaye v. Co-ordinating Cicsialtiee on Discipline, et ae

ue ,~8h O .........,c....... Pea Fy —

Keyishian v. Board of Régents, 8 385 U. S. OF niches : a

Matter of Chopak, 11 A. D. 2d 78 Se 11

_ Matter of John Ruffalo, Jr., No. 73, October Term, ©

. 1967, certiorari granted October 9, nies shainnat . 12

' Matter of Titus, 66 Hun 362 REA Ee ree |:

Re Murchison, 349 U.S. 133 ..eccceccseeoe jeiininneaiaie Aa

Offutt v. United States, 348 U. S. 11 OC ae

Ne |

- " : as , : : fey

4 iii, 2

| Page

Schware v. Board of ther Examiners, 353 U.S. 232, |

O88 inairninpactceetenaen ~ Se

| Spevack v. Klein, 385 UWS. 511 axcmanereee

: ‘Tumey v. Ohio, 273 U.-S. 510 - Sree ie oan 1

Willner v. "Character Committee, 373 U. 8.96 ...........- 11

Wintérs v. New York, 383 U.S. 507 ..ercccccccccceceeee 11

Zuckerman and Haber-v. Greason, 386 U.S. 15 uke ee

;

In THE

‘Supreme Court of the uited States

Ocrozer Term, 1967.

No.

- In THE Marrer :

-of

Lanpon ZUCKERMAN. and Sam Haven, |

} eee | Petitioners,

agaist :

-SamvueEL GREASON, er

| —

j ‘ @

Petition for Writ of. Certiorari to the Court of Appeals ;

of the State of New York.

The petitioners pray ‘that a writ of certiorari son ee

_ review the judgment of the Court of Appeals of the State

' of New York, entered in the above entitled case on October ©

31, 1967. ! :

ePpinions Below.

The opinion of: the Court of Appeals and the dinsesiting

opinion appear in Appendix B and Appendix BB, pages ;

15, 22. They have not yet been reported. . The earlier

per curiam memorandum of the Court of Appeals is incor-

porated in the opinion, Appendix B, page 16, and is.

reported in’19 N. Y. 2d 977. The Appellate Division

wrote a‘'memorandum after the mandate of this court was

Lf”

\issued. It i is sisal in 27 A.-D. 2d 848, and appears in |

Appendix B. hereto, page 15. After its order was *re-

versed by the Court of Appeals it wrote another memo-

_ randum which appears in Appendix C hereto, page 23;

‘ it is reported in 28 A. D. 2d 907.

J urisdiction.

The judgment of the Court’ of Appeals of the State of

New York is dated’ October 31, 1967, and entered on that

day, Appendix I, post, page 48. The jurisdiction of this

court is invoked under 28 U.S.C., Section. 1257(3).

Questions’ Presented.

1. Did the Appellate Division fulfill the mandate of this

court which issued upon the vacatur of the order of that

court by this court on February 13, 1967?

2. After die court vacated the ordérs against these pe-

titioners,-386: U. S. 15, and remanded tlie case for recon- |

sideration, should not the principles of Garrity’ v. New

. Jersey, 385 -U. S. 493, as well as Kaye v. Co-ordinating’

Committee on Discipline, U.S. 37 S. Ct. 848, have —

been applied to this case?.

3. Since the récord shows that’ the ieithie: of guilt by |

‘the referee were based upon the testimony and records

compelled by subpoenas in the face of the then existing

rule of Cohen v. Hurley, 366 U. S. 117, should not the

proceedings against these petitioners have been dismissed,

.or should not the findings’ based on such testimony and

records and leads produced by them have beén eliminated ?

gh Were not the petitioners denied due process of law in

“that the Appellate Division sat in judgment in its own

cause, since the record is clear that the Appellate. Division

: created: the judicial inquiry, appointed the respondent the

"prosecutor of it, acted as accuser, and then sat in judg-

ment in the prosecution of eee”.

5. Did not Section 90, subdivision | "9. of the portenam

Law of New York deny due process. of law to the peti-

tioners*in that it is’ overbroad and vague, and enables

abuse in its application?

6. After. the Court of Appeals “remandéd the case to the

Appellate Division wére not petitioners denied due process:

‘Sof law by the failure of the Appellate Division to hold a

hearing de novo to take testimony on the voluntariness

of their testimony, especially after a request for my

7. Was not the applicatton of Rule 7 to the petiti

of alleged conduct prior to its enactment, a violation of

the constitutional proscription against ex post facto appli-

-..eation of a law? ... «.

- 8. Since guilt is personal, was not the failure of the

referee to find. separately as.to which of the petitioners

was guilty of specific oem, a denial of due process? ne

\ . | Statute’ ‘ nenatinedl :

The statutory wnovinions involved are ‘Section 90, sub-

‘division 2, of the Judiciary Law of New York and Special

Rule. of the Appellate Division, Second’ Department. They

are printed in Appendix E, infra, page 28. .

‘Statement. “os a

This ‘application for a review arises out of a grant of

certiorari and a vacatur by this court of the order of

discipline by he Appellate Division, Second Department,

- and the remand by this court-of the case to that court,

Zuckerman and Haber v. Greason, 386 U. S. 15, decided

February 13, 1967. A copy of the per curiam decision of

this court is er in Appendix A, hy infra, page 14. On

oO *

ers.

_March 13, 1967, the mandate of this court issued. With-

out notice to petitioners or affording them an opportunity

_to be heard, the Appellate Division made a new order

dated March 20, 1967, by which it eliminated the charge

against Zuckerman in which it had been alleged that he

was guilty of professional misconduct because he had in-

voked the privilege against self-incrimination when asked

to produce records concerning his conduct as a lawyer and

_ reinstated the same discipline upon appellant Haber that

had been made by the Appellate Division before review

by this court. :

The petitianers appealed to the Court of Appeals, claim- .

ing they had been denied due process by the failure of

the Appellate Division to accord them notice and oppor-

_ tunity to be heard because they were entitled to haveethe

proceeding dismissed as the evidence against them was

tainted in that jt was procured by the compulsion of ‘the

then existing rule of Cohen v. Hurley, 366 U.S. 117, and

which was now overruled by Spevack v. Klein, 385 U. S.

511. Petitioners contended that: Garrity v. ‘New Jersey,

385 U. S. 493, prevented such testimony from being used

against them. They also desired to raise other federal

issues that had been presented to this court in their pre-

vious application for certiorari, but not passed upon by

this court (see, Petition for Writ of Certiorari, October

Term, 1966, No. 71, at p. 4)’ The Court of Appeals re-

versed: the order of the Appellate Division and“remanded

the case, not only to afford notice and a hearing to peti-

*tioners, but also because “the reversal by the United .

States Supreme Court of the orders in these disciplinary

proceedings, with remand to the Appellate Division, leaves

room for sahepectation, 19 'N. Y. 2d 977,- 978, -

page 16.

Thereupon, the Appellate Division afforded petitioners _

an opportunity to present arguments. Petitioners filed

“ee

[- ee

motions to dismiss the proceedings Fie F and “Ap-

pendix G, infra, pp. 29, 34). But the Appellate Division —

- did not hold hearings to take additional testimony though .

_Tequested (post, pp. 33, 45). In the motions to dismiss the

petitioners repeated the contentions they made in the

Court of Appeals, that Garrity v. New Jersey,. supra, con-

trolled, and since all the evidence was tainted, the proceed-

ings should be dismissed. Petitioners also contended that

the proceedings were unconstitutional because the statute,

Section 90, subdivision 2, is vague, that the Appellate

Division was sitting in a cause’in which it was the initiator

of the proceedings, accuser, and the judge, and that Rule

7 was applied ex post facto, and that the Referee failed to

* make specific findings separately“as to the i cacaeie guilt

of each of the petitioners.. n

Although the Court of Appeals had remitted the case to

the Appellate Division to make an interpretation in the

light of tlie conténtion that Garrity v. New Jersey applied,

the Appellate Division made no such interpretation. In

fact, it invoked for the first time a new reason to adhere

to its former disposition. It now held that the failure of

the petitioners to note their objection to the reception of

the tainted evidence precluded the. consideration of Garrity.

v. New Jersey, mfra, .page 4.

Upon a ‘new appeal to the Court of Appeals (resulting

‘in the judgment now, before this court for review), that

court disregarded entirely the contention that the petition-

ers were barred on the procedural ground that respond-

‘ent had urged. The Court of Appeals decided the case on

the merits and on federal grounds (disregarding, however,

without comment, the federal grounds other than the ap-

plicability of Garrity v. New Jersey). That court, with

Chief Judge Fuld in dissent, held that Garrity v. New

Jérsey did not apply because it was a criminal case, as

distinct from this case which is a disciplinary proceeding.

Chief Judge Fuld, dissenting, held that the petitioners

at the time they testified were controlled by Cohen v.

Hurley and thus had only Hobson’s choice. He said that

the least that could be granted to the petitioners is a hear-

ing to determine whether petitioners (as partners) gave

testimony voluntarily. or whether they gave it under the

compulsion of Cohen v. Hurley, infra, page 22. The ma-

jority, however, refused to provide such a test merely be-

cause it “would be a speculative inquiry, incapable of'and _

unsuitable to being resolved as.a question of fact,” infra,”

page 21. But—and this deserves emphasis—Chief -Judge

Fuld said in. his opinion that if such course would prove

. speculative, then the issue must be resolved m favor of .

petitioners by a dismissal of the charges, infra, page 22.

It cannot be otherwise, because the burden is on the re-

spondent at all stages to prove - case.

Stage and Manner of Raising Federal al Questions. eee oa

After the Court of “Appeals. audi the case to the

Appellate Division for a hearing after notice, the Appel-

_ late Division afforded petitioners an opportunity to file am

papers, briefs ard to argue the matter. _ Accordingly, ‘the ~

petitioners filed their separate notices of motion tosdis-

' affirm the Referee’s report and to dismiss the proceedings,

Appendices F and G, infra, D pages 29, 34. In said motions

the petitioners raised the federal questions here presented.

.The Appellate Division disposed: of the questions in its

memorandum, Appendix D, post, page 25. Upori appeal

to the Court of Appeals, petitioners again raised those

- questions in their briefs and oral arguments. The Court

of Appeals passed on some of: those questions (Opinion,

en: B and BB, infra, pp. 15, 22).

- Reasons for Granting the Writ.

This case raises several novel and significant questions :

1. The foremost is the question whether the Garrity

ease applied. When this court vacated the order of disci-

: . pline and remanded this case to the Appellate Division “in.

the light of Spevack v. Klein, 385 U. S. 511, it was implicit

that the doctrine of Garrity v. New Jersey was applicable.

Garrity was decided and embraced within Spevack, as the’

opinion of this court makes clear. Both of those cases —

are interwoven. The principle of Spevack is that one

should uot be punished or suffer a disability because he

had invoked the privilege against self-incrimination, and

Garrity holds that evidence obtained through the coersion

of .an unconstitutional condition cannot be used _subse-

quently against the person compelled to give it:

__—+—~ Moreover, on the very same day*(February 13, 1967)

that this court vacated: the order in this case, ‘it also

vacated the order of ‘discipline in Kaye v. Co-ordinating

Committee on Discipline, supra. In the Kaye. case, Kaye

had testified. His contention in this court was that the

coercive force of the very existence of Cohen v. Hurley -

had compelled him to testify. That is exactly what the

petitioners here claim. They should receive the same

benefits of Spevack and Garrity that Kaye received.

This court’s vacatur indicates that it had Garrity in

mind, for it vacated as to Haber, who had not invoked

the privilege, as well as to Zuckerman, who did. Why -

would this court have favored Haber if it did not intend

Garrity in its interpretation. Indeed, the respondent had

moved fruitlessly for -a ‘rehearing in which it. had ques-

tioned this court’s decision as to Haber, —§ U.S. |

87 S. Ct. 1016.

Indeed, this court said i in Miranda v. Arizona, 384 U..S.

436, 468: |

“Today, a there can’ he no doubt that the

Fifth Amendment privilege is available ‘outside of |

criminal court proceedings and serves to protect -

persons in all settings in which their freedom of

action is eurtailed in any significant way from

being compelled to incriminate amadives. #

The’Court of Appeals, in its opinion held that Garrity

does | not apply because Garrity involved a criminal prose-

cution, whereas this case is‘a disciplinary proceeding. This

is a’glaring error, because in Spevack that very same issue

-was determined in favor of Spevack. In that case this

~ eourt. said that the loss of standing as a lawyer was as

much punishment as _ the imposition of any other penalty

or disability.

The Court of Appeals was contradictory i in its opinion, |

because it immediately modified its. words, by stating:

“We do not suggest that the witness is protected by the

Constitution only when testifying in the criminal courts.

~The law is settled to the contrary. But to bring him

within the protection of the Constitution, the disclosure . .

asked of him must expose him to punishment and crime,”

citing Matter of. Rouss, 221 N. Y. 81, 86. Even if the due

process issue involved in this ease, "whether the evidence

_ coerced under. an unconstitutional condition may be used

to deprive petitioners of their professional standing, were —

limited to cases where disclosure may expose to criminal

punishment, the answer is. that the charges against pe-

titioners are covered by the New York Penal Law, Ar-

ticle 24, effect-at the time the charges were made.

But we urge, however, that Spevack, Garrity, and Kaye

have made plain that coerced and tainted testimony cannot

be used to inflict any kind of punishment or disability.

a 9

Chief Judge Fuld dissenting, assumed that Garrity ap-.

plied and that Zuckerman and Haber, law partners, were

faced with a Hobson’s choice of not testifying and being

disbarred under the then prevailing doctrine of Cohen v.

Hurley or else testifying and being disciplined. He fur-

ther held that any question whether the petitioners had

testified voluntarily (and not because of the fears of the

_ eonsequences of Cohen v. Hurley) should be the subject —

‘of a hearing. To the latter the majority opinion replied

“would be a speculative inquiry, incapable of and unsuit-

able to being resolved @s a question of fact.” This.is an .—

extraordinary disposition, considering what is at stake. It

deprives these petitioners of their standing as lawyers.

: just because it is assumed that the proot will be difficult .

to evaluate! !

Chief Judge Fuld forcefully replied, however, that if it

‘would be speculative, then the charges against petitioners

should te dismissed, infra, page 21.

Assuming that Garrity and Spevack are both applicable

to this case, the question then is whether’ there is any

proof, not tainted by the compelled testimony of petition-—

ers, to sustain the findings against the petitioners. Al- |

though the burden of proof was on respondent to adduce

". such evidence, none came forth. Such proof could not be

produced. The record makes clear that the evidence used

to support the findings of the referee was obtained through

the records and testimony furnished by Haber and his law

partner, Zuckerman, or from leads obtained through such

records. The report of the referee, throvghout, makes it

plain that the evidence was of:the tainted nature found

in Garrity (see for example, Report, pp. 5, 20). The bill

of particulars likewise points to the same conclusion. The

stenographic minutes of the hearings, pages 23, 25-27,

28-155, 446-467, 467-475, demonstrates petitioners’ conten- a

tion. The multifarious subpoenas served on the petition-

tal

ees

10°

ers by the Judicial Inquiry, post, page 46, support

the argument that the testimony and records were ob-

tained by compulsion. Between 150: and 200 files of the. .

petitioners were examined (stenographic minutes, p. 440).

~The petitioners were questioned at- about 11 sessions, plus ©

’ questioning by — (stenographic asad ‘pp. 450-:

451).

Annexed hereto, Appendix J, infra, page 51, is a break-

down of the use of the evidence obtained through the

subpoenas, in the bill of particulars and in the Referee’ s

SaEPES.

‘It is submitted, that the in terrorem effect of Cohen a.

Hurley compelled the testimony. No contention to the .

contrary has been offered, for none can be persuasive.

‘And it should also. be observed that the respondent’s

‘argument below was principally that the petitioners have:

no standing to raise the issues here presented, because

_ they had not objected to the reception of the. tainted evi-

dence. Even the Court of Appeals rejected that conten-

tion, saying, “If Zuckerman and Haber’s constitutional

contention be correct on this appeal, it might be argued

with some force that neither of them was obliged to object

in order to raise the point, in as much as making that ob-

jection could have: resulted automatically in their disbar-

ment for so long as Cohen v. Hurley remained the law,”

post, page 19.

2, Because this court had vacated the ordér of the .

Appellate Division in the light of Spevack, it did not pass

upon the other questions they had raised in the. previous

petition for a writ of certiorari. At the Appellate Division

and in the Court of Appeals the petitioners again raised

those questions, post, 28, 33. The vacatur of the order

reopened the proceeding and the petitioners. were correct

in again tendering the issues this court did not pass upon

because it had decided in petitioners’ favor on other

“il

grounds. Communist Party of the United States v. Sub-

versive Activities Control Board, 254 F. 2d 314.

The petitioners contend that Section 90, subdivision 2,

of the Judiciary Law is vague and overbroad and leads

to“buses. The statute reads as follows:

“The supreme court shall have power and con-

trol. over attorneys and counsellors-at-law and all

~ persons practicing or assuming to practice law, and

_ the appellate. division of the supreme court in each

- department is authorized to censure, suspend from

practice or remove from office any attorney and

counsellor-at-law admitted. to practice who is guilty

of professiénal misconduct, malpractice, fraud, de--

ceit, crime or misdemeanor, or any conduct preju-

dicial to the administration of justice; and the ap-

_pellate. division of the supreme court is hereby

authorized to revoke such admission for any misrep-

resentation or suppression of any information in

connection with the application for admission ‘to

practice.” | |

‘Under this statute the petitioners have been suspended

for five years because of a zealous and diligent devotion,

to their clients’ interests. Petitioners are charged .with

having submitted exaggerated bills of particulars and with

- procuring statements from adversary witnesses in viola-

tion of a rule against obtaining statements from adverse

parties. The referee construed the rule to apply to

witnesses. - : . ,

The overbroadness of the.statute does not provide a

standard of conduct for lawyers. . Winters v. New York,

~ 333 U.S. 507 ; Seales v. Board of Regents, 385 U. S.

589.

The overbroadness of the statute leads to abuses, and

_ enables. the Appellate Division to make up its rules of

behavior ad hoc. It provides an‘opportunity to disbar a.

lawyer because he had committed adultery, Matter of

42 -

- Titus, 66 Hun 362, or because an attorney in his capacity

of landlord took excessive rent and wrote’ scurrilous letters

to his tenants, Matter of Chopak, 11 A. D. 2d 78. These

are just two instances in a long catalog. The.statute does

. not provide standards and therefore provides abuse. See

also, Willner v. Character Committee, 373. U. S. 96;.

Schware v. Board of Bar Examiners, 353 U. S. 232, 238.”

3. In creating the investigating and prosecutorial arm,

_ ‘the Appellate Division could not constitutionally sit in

judgment in its own case. The Judicial Inquiry was cre-

ated by the “Appellate Division. The Appellate Division

appointed respondent Samuel Greason as its prosecuting

+ arm. The respondent, as the representative of the Ap-

; pellate Division, then filed charges against petitioners,

accusing>them of the claimed wrongs. The Appellate Di-

vision thereafter sat in judgment in the case. We submit,

that Re Murchison, 349 U. S. 133; In re Oliver, 333 U.S.

257; Tumey v. Ohio, 273 U. S. 510, and Offutt v. United:

States, 348 U. S. 11, have given the answer that due”

process fundamentally requires that a court do not; sit in

judgment in its own cause. This issue was not re olved

6 in Anonymous v. Baker, 360 U. S. 287.

- 4.-The petitioners have been found guilty: of laeties

‘Rule? i in that they procured statements from adversary

parties. That’ rule was enacted by the Appellate. Diyi-

‘sion, Second Departnient, on. July 1, 1960. Yet the evi- ©

| dence adduced to support the violations refers to alleged

violations that occurred prior to July 1, 1960. Such an

- application of the rule was ex post facto Decanse it makes

punishabJe an action that was innocent when déne, Calder

+ . v, Bull, 3 Dallas 386, and Bouie v. City of Columbia, 378

JU. S. 347, where a conviction. based’ on a new construction. ‘

‘of a statute was nullified.

5. The petitioners have been disciplined because, among-

other things, they caused an mpventigator to : proonsy state-

ments from adverse witnesses. Even if the statements ae

were from adverse parties, a serious question still remains

whether a lawyer should be. punished because,’ out of zeal

for his client, he exercises his judgment toward the client’s

best, interests. This court granted review in a very sim-

- ilar ‘case,, Matter .of John Ruffalo, Jr., No. 73, October

Term, 1967, certiorari granted October 9, 1967, where an

’ attorney was disbarred for hiring an employee - -as under-

cover agent to. obtain evidence in a personal i injury claim.

: 0 :

o _ CONCLUSION.

For the foregoing substantial reasons, “this petition

for a writ of certiorari should be aren {2 Se.

Dated, ye 15, 1967.

ba Respectfully submitted,

Ka cate ee . EMANUEL REDFIELD,

" . *s Counsel for Petitioners,

| . 37 Wall Street,

New York, New York 10005,

Tel: 212, HAnover 2-1023. -

° &

£3

° ‘14

APPENDIX A:

Opinion of the Supreme Court of the United States:

- i v

Lanpon Zuckerman, et al.,

‘ Petitioners,

v. a

SAMUEL GREASON.

tach SB. waa 17 be. Ed 2d 696, 8748. Ct. ui. >”

(No.. 71)

February 13, 1967

On ‘Petition ‘for Writ. of Certiorari to the Appellate |

_Diyision of the Supreme Courf of New York, Second J u-

* dicial Department. |

Same case below, 93 A. D. 3d 825, 259 N. Y. S. 2d 963.

Per feet

“

The petition for a writ of certiorari is granted. -The

judgment is vacated and the case is renfffnded to the.

Appellate Division of the Supreme Court of New York,

~ Second Judicial Department, for reconsideration in ight

of Spevack v. Klein, 385 U. S. wer, 17 L. Ed. 2d st, 87

S. Ct. 625. int

Mr.. ‘Justice Clark, Mr. ‘sae Harlan, and Mr. Justice

Stewart would affirm the judgment below forthe reasons:

set forth in Mr. Justice Harlan’s dissenting opinion in

Spevack y. Kleim, 385 U.S. 520, 17 L. Ed. 2d 581.. j

Mr. Justice White dissents for the reasons stated. in his

; | dissenting opinion in Garrity v. New Jersey, and Spevack

Y. Klein, 835 U. S..530, 17 L. Ed. 2d. 586. |

‘

& 6 _ - g

APPENDIX B.. C

Opinion. .

In THe Marre, |

be is | (o- ; . ?

Lanpon Zuckerman and Sam Haser, Attorneys,

| < ee Appellants,

: SamveL GREason, <a <s

| Respondent.

| _—

Decided October 31, 1967.

- APPEAL, on constitutional grounds, from an order of the

Appellate Division ,of.the Supreme Court in the Second

Judicial Department, entered July 10, 1967; which unani-

‘mously suspended appellants from the practice of law for:

five years*commencing nunc pro tune as of April 10, 1965,

with leave to apply for reinstatement after that period of

five years. (See 386 U. S: 15, 19. N. Y. 2d 977.). .

Emanuel Redfield for Sam Haber, appellant. .

Landon Zuckerman, appellant in person. | ne

_ Harold M. all for respondent. .- ~—

Van Vooruis, J. On Soa 3, 1965 appellant. Landon

Zuckerman was disbarred and appellant Sam Haber. was

suspended from the practice of law for a period. of five

years (23 A. D. 2d 825). Charges numbered 5-B,’5-F and

5-Hg were sustained against both defendants sad ch =

d-A was sustained as to Zuckerman only. The o

charges were dismissed. A motion for leave to Pesca

to this court was denied July 9, 1965 (16 N. Y. 2d 482):

On February 13, 1967 the United States Supreme Court

granted certiorari, vacated the order of the Appellate Di-

vision and remanded the case to that court “for reconsid-

eration in light of Spevack v. Klein, 385 U. S. 511” (386 .

U. S. 15). The mandate of the Supreme Court’ stated

that this was done in order that such proceedings might

be had “as accord with right and justice,‘and the Consti-

tution and laws of the United States.” On March 20, 1967.

the Appellate Division, without notice to Zixckerman or

Haber, or opportunity to them to be- heard, dismissed

charge 5-A against Zuckerman and sustained charges 5-B,

5-Fand 5-H against both. That was the same disposition

which had. been made by the Appellate Division before

review by the Supreme Court, except that charge 5-A was

dismissed against Zuckerman and he, also, was suspended

for five years instead of being disbarred (27 A. D. 2d 848).

On appeal to this court, we reversed the order of the

Appellate Division for lack of due process in not affording

an opportunity to_be heard ( 19 N. Y. 2d 977, 978) in the

following memorandum:

“The reversal by the United States Supreme Court of

_ the orders,in these disciplinary proceedings, with remand

to the Appellate Division, leaves room for interpretation.

Consequently due ‘process required ‘notice to appellants

and opportunity to be heard before the determinations

were made by the Appellate Division culminating in the

order of suspension entered March 20, 1967, from which

this appeal is taken. .

“The order appealed from should be reversed, and the

matter remanded to the Appellate Division. for further

consideration upon notice to appellants and after they

shall havé had opportunity to be heard as above men-

tioned.” DO

After a hearing—no further evidence was offered—the

Appellate Division entered an order on July 10, 1967 to

the same effect as its order of March 20, 1967 (28 A. D.

2d 907). Haber and Zuckerman now appeal from that

order of July 10, 1967.

The main argument which is addressed to us is that the:

charges which were sustained (5-B, 5-F, 5-H) were based,

in part, at least, upon disclosures made by Haber and

Zuckerman under the compulsion of Cohen v. Hurley (366

U.S. 117), which held that an attorney might be disbarred

for refusing to testify in a disciplinary proceeding as a

result of invoking his privilege against self-incrimination

under the Fifth Amendment to the Constitution of the

‘United States. Cohen v. Hurley was overruled by Spevack

v. Klein (385 U.S. 511), on the basis that Cohen v. Hurley

could not have been decided as it was ‘if the applicable

. portion of ‘the Fifth Amendment had then been held to

have been mandated on the ‘States by the Fourteenth

Amendment, as it was subsequently held to be in Malloy

v. Hogan (378 U.-S. 1).. Spevack v. Klein decided that a

lawyer could not be disciplined on the ground that he’had

failed ‘to co-operate with the court’ by remaining silent

when questioned coricerning his professional-conduct if -he

i invoked the Fifth Amendment. In Garrity v. New Jersey

(385 U. S. 493), decided at the same time with Spevack, °

police .officers were convicted of crime on*the basis of

statements which they made regarding their official con-

duct in a State which had a statute providing that a public

employee should be removed from office if on Fifth Amend-

ment grounds he refuses to answer any material question

- before any commission or: body which has the right to in-

quire about matters relating to his office or employment. -

It was held that the existence of that statute coerced these

police officers into failing to invoke the Fifth Amendment

' and that, therefore, what they said in answer to official~

inquiries should not have been admitted into evidence

against them in a criminal prosecution. 7

Me a re

Garrity v. New Jersey was not cited in the Per Curiam

opinion by the Supreme Court in Zuckermam. and Haber

(386 U. S. 15). The remand to the Appellate Division

was “for reconsideration in light of Spevack v. Klein”

- not Garrity v. New Jersey. This is understandable, inas-.

much as Garrity involved the review of criminal convic-

‘tions of public - officers—which these appeals do not—

whereas Spevack concerned disciplinary “proceedings for

professional misconduct of an attorney who was a’ private

citizen, which Zuckerman and Haber are.

‘The Appellate Division, by the order now need

from, evidently construed the Supreme Court determina-

tion as requiring the dismissal only of charge,5-A against

Zuckerman, which charged his failure to co-operate with

the Appellate Division by invoking the Fifth Amendment

insofar as the production of his records was concerned

' which might have tended to incriminate him in connection

with impending. charges of income tax evasion by the In-

ternal Revenue Service. Overruling of -Cohen v. Hurley

eliminated that specification as a charge of professional

misconduct. .

- The charges. which ‘were sustained by the Appellate Di-

vision after reversal by the Supreme Court, are that both

appellants’ submitted misleading, exaggerated and false

medical bills and statements covering lost. time and earn-

ings of clients for ‘the purpose of inducing various insur-

. ance companies to part with money in reliance thereon

(5-B); that both built up medical bills for submission to

insurance .companies by referring claimants. with simple

. injuries to a suceession of medical specialists without

communication with their attending physicians (5-F); and

that both, in violation of the Canons of Ethics, used in-

vestigators to obtain signed retainers, to obtain state-

‘ments from adverse parties represented by attorneys and

to obtain the-clients’? signatures on blank forms for the

appointments of guardians ad litem (5-H).

' There is evidence to sustain those charges. “Appellants

now contend that sustaining them wholly or partly on the

basis of data submitted by Zuckerman and Haber is un-.~ ~~

constitutional under the holding of the Supreme Court in -

their case in the light of Spevack. and Garrity. Haber —

made his disclosures without making any claim of privilege

under the Fifth Amendment. He excused his omission to

produce certain partnership papers for the reason that he

had delivered them to Zuckerman, who had them in his |

possession. Zuckerman objected to disclosure of records, —

invoking the Fifth. Amendment, insofar as they related

to his income tax status. No objection appears to have

been made in Garrity to disclosure of intriminating infor-

mation, evidently for the reason that to have taken such

-an objection would have: forfeited their public offices as

policemen under the terms of the New Jersey statute. . If

Zuekerman and Haber’s constitutional contention be cor-

‘rect on this appeal, it might be argued with some force

- that neither of them was obliged to object in-order to

raise the point, inasmuch as making that objection could

have resulted automatically in their disbarment for so

long as Cohen v. Hurley: remained the law. It may, well”

be that if Zuckerman or Haber had been prosecuted for

crime, any disclosures made in their disciplinary proceed-

ings would have to have been excluded from evidence in

the criminal action following the precedent of Garrity v.

New Jersey. Likewise, under Spevack v. Klein, neither of

them could have been suspended or disbarred merely for

the reason that he had invoked the Fifth Amendment.

Neither of those things have occurred. They made dis-

closure of facts which, in combination with other evidence,

_have been held to sustain charges 5-B,5-F and 5-H. They

take the position, to ‘which they are driven. by the logic

of their own contention, that every lawyer has been un-

constitutionally disbarred or suspended who. has made

. disclosure of his professional conduct in disciplinary pro-

ceedings after the decision of the Supreme Court in Cohen

v. Hurley.and before its decision in Spevack v. Klein.

They point out that the Supreme Court reversed the sus-

- 90 ,

pension of Haber as well as the disbarment of Zucker-

~hian, even- though Zuckerman alone had been found to have

refused to co-operate by invoking the Fifth Amendment

(5-A). It is said that unless the Supreme Court agreed

with appellants’ present argument in this court, it would

have affirmed the suspension of Haber and reversed the -

* disbarment of Zuckerman. —

It is more likely, perhaps, that the reversal of the

disciplinary measures imposed upon each was due to the

thought that since the order had to be reversed as to

Zuckerman (because of the overruling of Cohen v. Hurley)

fairness dictated that Haber should be given another

chance also. They had been partners, they were disciplined

by a single order, and the Supreme Court may have con-

sidered that the Appellate Division might have punished

_ Haber less severely than it had done .if-the punishment of

Zuckerman were to have’ been less severe.

The Fifth Amendment relates to ‘self-incrimination on

‘charges of crime. Disciplinary proceedings for profes-

sional misconduct are civil in nature (Matter of Phillies,

17 A. D. 2d 93, and cases cited, mot. for lv. to app. den.

12 N. Y. 2d 645). It is sufficient protectioh to a lawyer in

such a situation that he could not be prosecuted for crime

on the basis of disclosures which he might have ‘made in

a disciplinary proceeding while Cohen v. Hurley. remained

the law. The Fifth Amendment states that no person

“shall be compelled in any criminal case to be a witness

against himself” (italics supplied). These men have made

the disclosures which have contributed to the disciplinary

measures which have been imposed upon them. . They are

not charged with crime. “The [State] Constitution says

‘that no person ‘shall be compelled in any criminal case

to be a witness against himself’ (Const., art. I, sec. 6). A

_ proceeding looking to disbarment is not a eriiinal case

(Matter of Randel, supra [158 N. Y. 216]). We do not

suggest that the witness is protected by the Constitution

only when testifying in the criminal coufts. The law is -

° .

¢ %

settled to the contrary. But to bring him within the pro-

tection of the Constitution, the disclosure asked of him

must: expose him to punishment for crime” (Matter of

“Rouss, 221 N. Y. 81, 86, Carpozo, J.). The evidence which

these appellants produced before the Referee cannot be

‘used against: them in any criminal proceeding. They had

no privilege against making disclosure usable only in a

disciplinary proceeding. The constitutional privilege ap- —

plies only in the case of evidence which might be used

against them in a criminal case under the language of the

Fifth Amendment. Haber and Zuckerman may have

' thought that unless they produced this evidence that they

would be disbarred under Cohen v. Hurley, but neither

Garrity or Spevack confers upon them a constitutional

privilege to withhold evidence which cannot lead to crim- -

inal prosecution and bears only upon their right to con-

tinue: to practice law.

Lawyers are officers of the court and their professional

conduct is subject to the supervisory and corrective pow-

ers of the Appellaté Division (Judiciary Law, §90; Matter

of Kaufmann, 245 N. Y. 423, 432; Matter of Dolphin, 240

N. Y. 89; Matter of Flannery, 212 N. Y. 610). They are

not required to invoke the Fifth Amendment. to the Con-.

stitution .°,the United States but may choose to reveal

their pre essional conduct to the scrutiny and evaluation

of the Appellate Division when its propriety is drawn. in

question. .To determine whether they have been moti-

vated in doing so by the holding in Cohen v. Hurley prior

to the decision in Spevack v. Klein or by other reasons

would be a speculative inquiry, incapable of and unsuit-

able to being resolved as a question of fact. It would

simply mean that every lawyer who has been censored,

suspended or disbarred during the interval between the

‘two Supreme Court cases cited would be entitled to have

his disciplinary order overruled wherever the court has

retained jurisdiction.:

‘The order appealed from should be affirmed, without

costs. . a

APPENDIX BB.

- Dissenting Opinion of Chief Judge Fuld.

Chief Judge Futp (dissenting). By reason of Cohen v.

Hurley (366 U. S. 117), the appellants were faced with a

Hobson’s choice @f disbarment, or the production of the

documentary evidence and thé giving of ‘the testimony

upon which their suspensions depend. It. seems: to me

that the rationale underlying Spevack v. Klein (385 U.S.

511), as well as the Supreme Court’s mandate to the Ap-

pellate Division (386 U. S. 15), requires that’ there be an

inquiry to ascertain whether the appellants (or either of

them), absent the compulsion stemming from the Cohen

decision, would have asserted their privilege! against self-

incrimination, whether, in other words, the testimony

given by them, seemingly voluntary, was actually so and,

if not, whether evidence from other sources justified the

disciplinary action taken against them. There are other

reasons why lawyers may, and frequently do, chgose ‘to

testify when charges are filed against them but whether

these appellants gave their testimony under the compul-

sion of Cohen v. Hurley (366 U. S. 117, swpra)-is a ques-

tion of fact to be considered and resolved like other issues

of fact... If, as the majority concludes, such an inquiry

‘would be too speculative, then, the charges should be dis-

missed unless supported by other evidence.

Accordingly, I would reverse the orders appealed from

and remand the matter to the Appellate Diyision for fur-

ther. proceedings. ;

Judges Burke, Scruepri, Beraan, Keating and Brerren

eoneur with Judge Van Voornis; Chief Judge Fup dis-

_ sents and votes to reverse in a separate ‘opinion.

- Order -affirmed. | . :

1 Since one of the appellants actually asserted his privilege at one

point, the question arises whether he was, indeed, impelled by the

holding in the Cohen case to refrain from claiming the privilege in

connection with the balance of his testimony,

23° |

APPENDIX C.

Opinion and Slip Decision. ‘eS

Appellate Division, March 20, 1967

papers Drvistion—Srconp DEPARTMENT.

-- In THE MATTER

eo er

Lanpon ZucKERMAN and Sam Haser, Attorneys.

SAMUEL GREASON,

Petitioner, .

_ Lanpon Zuckerman and Sam ‘Haser,

Respondents.

Decided March 20, 1967.

. Justices Bexpock, Curist, BRENNAN, Rapin and Hopkins.

On March 3, 1965, this court disbarred respondent Zuck#

erman based on its finding that he was guilty. of ¢harges |

OA, 5B, 5F and 5H as specified therein, and suspended re- —

spondent Haber for 5 years based on its finding that he

was guilty of charges 5B, 5F and 5H (23 A. D.. 2d °825,

where the charges are set out in. full). The Court of -

Appeals denied-leave to appeal (16 N. Y. 2d 482, 483)

and thereafter dismissed respondents’ appeal taken as of

right (16 N. Y. 2d 992). |

On February 13, 1967, the’ Supreme Court of the United

States granted certiorari, vacated the judgment of this

court and remanded the matter to this court for recon-

sideration in light of Spevack v. Klein (385 U.-S. 511)

(Zuckerman v. Greason, ...... U. S.. ......, 87 Sup, Ct. 847).

On March 13, 1967, the order of remand was made.

On reconsideration, this. court dismisses charge 5A, ot

which had been found established only against respondent

Zuckerman, on the authority of Spevack v. Klein (385 U.

__ S. 511, supra). ‘There is ample evidence in the record to

sustain charges 5B, 5F and 5H against both respondents.

As to these charges, Spevack has no application. Ac-

cordingly, wé confirm the referee’s report, finding both re-

_ spondents guilty of charges 5B, 5F and 5H.- Based on

these findings, hoth respondents are suspended from the

practice of law for a period of five years, nunc pro tunc

as of April 10, 1965.

oa, ,:

25 ce te

*- APPENDIX D.

Memorandum.

Nos. 1794, 1795 and 1796.

— .

In THE MATTER

of . — ‘ | £8

Lanvon Zuckerman and Sam Haser, Attorneys.

SAMUEL GREASON, wt

a | me Petitioner,

Lanpon ZuckerMaN and Sam Haser,

Respondents.

—

‘On March 3, 1965 this court disbarred respondent Zuck- |

erman based on its finding that he was guilty of charges

_in the petition specified as 5A, 5B, 5F and 5H, and: sus-

pended respondent Haber for five years, effective April

10, 1965, based on its finding that he was guilty of charges

in the petition specified as. 5B, 5F and 5H (23 A. D.. 2d

825, where the charges are set out in full). The Court

of Appeals denied leave to appeal (16 N. Y. 2d 992). On

February 13, 1967 the Supreme Court of the ‘United States

granted certiorari, vacated the judgment of this. court and.

remanded the matter to this court for reconsideration in

light of Spevack v. Klem (385 U. S. 511); Zuckerman v..

Greason (...... U. S. +... ). On March 13, 1967 the order of

remand was:made (Matter: of Zuckerman and. Haber, 27

A. D. 2d 848).. On March 20, 1967, on reconsideration and

on the authority of Spevack; this court dismissed charge

_ 5A, which had been established only against respondent

. Zuckerman, and stated that there was ample evidence in.

the record to sustain charges 5B, 5F and 5H against both

respondents and, that,.as to thosé charges, Spevack had

no application. “Accordingly, this Geurt confirmed so much —

of. the Referee’s report as found both respondents. guilty

of charges "DB, 5F and 5H and, on those findings, sus-

period of five years, nunc pro tunc as-of April 10, 1965.’

On June 1, 1967 the Court of Appeals reversed the order

of this court, remanded the disciplinary proceedings to this

court for further consideratign. in accordance with its -

memorandum and stated that. the “reversal by the United

States Supreme Court of the orders in these disciplinary

proceedings, with remand to the Appellate Division, leave

_ room‘ for interpretation. Consequently due process" Te.

: quired notice to ppellants and opportunity to be heard |

before the determinations were made by the Appellate Di-

vision culminating in the order of suspension ‘entered

‘March 20, 1967, from whith this appeal is taken” Cc.

N. Y. 2d .....c).

_| Upon due notice, this ‘Court accorded the satin an op-

portunity to be heard. Thereupon, Chief Counsel for the

Judicial Inquiry moved for an order dismissing the find-

ing of guilt as to charge’ 5A and sustaining the findings

a guilt as to both respondents as to charges 5B, 5F and

5H. The respondents moved for orders dismissing the

proceedings, disaffirming the Referee’s findings: and re-

_ ports as to charges 5A, 5B,. 5F. and | OH, and for other

Srelief, . .

Motion by Chief Counsel’ for’ the J udicial lnguiey- is |

granted and the motions by respondents are denied.. There

is ample ‘evidence, which was received without objection on

constitutional grounds, to sustain charges 5B, 5F and 5H

. against both respondents (Matter of Leogrande v. State

~——

_ pended both. respondents from the practice of law fora ~

as of April 10, 1965. /

ae Betpock, P.‘J., Curist, BRENNAN, Rapin and Hopkins,

- . JJ., concur. | 2% |

Statutes and Rule.

Rule 7 _

Prohibition of communication with adverse party.

No attorney shall communicate directly or indirectly .

upon the subject of any pending claim or action with an

adverse party plaintiff or defendant known to him to be

‘ represented by attorney without the latter’s knowledge and »

consent, nor: shall he permit any claim agent or other rep-

resentative of his client to interview an adverse party

plaintiff or defendant or obtain any statement from him, ©

or make any settlement with him without the knowledge

and consent of the latter’s attorney.. :

Section 90, Judiciary Law, subdivision 2.

The supreme court shall have power and control over:

attorneys and counsellors-at-law and all persons practicing .

or assuming to practice law, and the appellate division of

the supreme court in each department is authorized to

censure, suspend from practice or remove from office any

attorney and counsellor-at-law admitted to practice, who .

is guilty of professional misconduct, malpractice, ‘fraud,

deceit, crime or misdemeanor, or any conduct prejudicial

to ‘the administration of justice; and.the appellate divi-

sion of the supreme court is hereby authorized to revoke

such admission for any’ misrepresentation or suppression

of any information in connection with the application for

. admission to practice.

—

seni set - SBR. |

APPENDIX F.

“a

Notice of Motion.

SUPREME COURT OF THE STATE OF NEW YORK,

APPELLATE Division—Seconp JUDICIAL DEPARTMENT.

| .

In THE MaTrTER

SAMUEL GREASON,

Petitioner,

against

Lanpon Zuckerman and Sam Hanser,

Respondents.

Sir:

Please Take Notice that upon the annexed affidavit of

Sam Haber, sworn to the 19th day of June, 1967, and

upon all pleadings and proceedings heretofore had herein,

the undersigned attorney for the respondent, Sam Haber,

will move this court at a stated term thereof, to be held at

the courthouse, 45 Monroe Place, Brooklyn, New York, on

the 26th. day of June, 1967, at 2:00 p.m. or as soon there-

after as counsel can be heard for an order dismissingthis

proceeding upon the grounds set forth in the aforesaid

affidavit, to disaffirm the findings and"report of the referee

~ 30-

so far.as applicable, and for such other and further re-

lief as to the court may seem just and proper. .

Dated: New York, New York

June 19, 1967. —~

Yours, etc.,

» EMANUEL REDFIELD

Attorney for Respondent, Sam Haber

Office & P.O. Address

60 Wall Street

New York, New York 10005

To:

Harold M. Spitzer, Esq. -

Attorney for Petitioner

821 Franklin Avenue

' Garden City, New York

(e)

ee La? OTT ee

canned

SUPREME COURT OF THE STATE OF NEW. YORK,

APPELLATE DIvIsSION—SECOND JUDICIAL DEPARTMENT.

>—__ .

In tHe MATTER

_ of ; @

SaMvueEL GREASON,

Petitioner,

against

_ Lanpon Zuckerman and Sam Haser,

Respondents.

State of New York,

County of New York, ss:

Sam Haser, being duly sworn, says:

That he-is one of the respondents in this proceeding

and makes this affidavit in opposition to petitioner’s mo-

tion and in support of this motion to dismiss this proceed-

ing and to. disaffirm the referee’s findings and report as

to charges 5B, 5F and 5H on the following grounds:

1. That the evidence which forms the basis-of the find-

ings and report of the referee was derived from testimony |

and records coerced from the respondent and his law part-

ner, Landon Zuckerman, in violation of his rights and

_ privileges under the Constitution of the United States,

‘the Fifth and Fourteenth Amendments thereof.

2. Th&t Section 90, Subd. 2 of the Judiciary Law insofar

as same empowers the Supreme Court to censure, sus-

pend from practice and remove from office an attorney.

and counsellor-at-law for “professional ‘misconduct” or

@ \

» *

“malpractice” or “conduct prejudicial to the administra-

tion of justice” is vague and uncertain and violative of -

_ respondent’s rights under the Constitution of the United |

States. .

3. This court, in dissiien . its ‘ilies of January 21,

1957, as amended by its order of February 11, 1957, a ju- |

» dicial inquiry and investigation (Matter of M. "Anonymous

v. Arkwright, 5 A. D. 2d 790), and then sitting in judg-

ment on the charges has denied this respondent of due

process of law in violation of the Fourteenth Amendment -

to the Constitution of the United States. And due process

‘requires as a minimum that a tribunal other than’ this

court hear and determine the charges involved.

4. Special Rule 7 of this court is not applicable to the —

facts with respect to this respondent.

5. The application of said Rule 7.to this tas is

a denial of due process of law, is ex post.facto in viola-

tion of the Constitution of the United States.

6. The report of the referee fails to separate the evi-

dence as to the charges against this respondent and there-

fore the charges are not supported as to respondent Sam

Haber.

The legal questions involved are the subject of a sepa-

rate brief. ~

This affidavit shows the following facts: This proceed-

ing is a culmination of a judicial inquiry and investiga-

tion ordered by this court by its order dated January 21,

1957, as amended by its order dated February 11, 1957.

On or about November 29, 1960 and again én April 24,

1961 the Judicial Inquiry served subpoenas duces tecum

to be served on respondents, demanding they appear and

‘produce records. On February 24, 1961 the Judicial In-

quiry wrote a letter to them demanding additional files.

The records were produced and respondent Haber testi-

—

of: petitioner be denied.

fied. Deponert . testified and produced the records be-

v. Hurley dated December 31, 1959, which was affirmed by

the Supreme Court of the United States on April 24, 1961

warned respondent that if he failed to comply he would

be disbarred. Because of the fears ane peril, the re-

spondent complied.

_ All the evidence before the sible are from testiniony

or records supplied by respondent or by respondent Zuck-

erman, his partner, or from leads furnished by such tes-

- eause he had no choice. The order of this court in Cohen °

timony ‘and records. The evidence therefore is‘ tainted.

with constitutional infirmity. Reference is made to the

subpoenas, the letter, the records, the testimony, the find-

ings and report of the referee and incorporated herein.

In the event of any doubt, it is, requested that a hearing —

be held on this subject, for. the purpose of exploring these .

facts in detail (it appears, however, that the claims herein

are beyond cavil).

WHEREFORE, it is respectfully requested ‘that this pro-

ceeding be dismissed, the report of the referee be disaf- —

firmed as to charges 5B, 5F and 5H and that the motion

SAM HABER

Sworn to before me this

19th day of June, 1967.

EMANUEL REDFIELD

Notary Public,.State of New York

No. 03-3224800 .

Qualified in Bronx County .

Certificate filed in New York County

Commission Expires March 30, 1969

‘34

- APPENDIX 6G. :

SUPREME COURT OF THE STATE OF NEW YORK,

‘ieniicaiion Drvision—Seconp DEPARTMENT.

——

In THE MATTER

: of

Lanpon Zuckerman and Sam. Haser, Attorneys.

SAMUEL GREASON,

Petitioner,

Lanpon ZUCKERMAN and Sain Haber,

a ; er mempenmeate-

Sm:

Please Take Notice, that upon the annexed affidavit of.

Landon Zuckerman, duly sworn to the 17th day of June,

1967, and the proceedings heretofore had herein, the un-

dersigned will move this Honorable Court at a Term for .

Motions thereof, fixed by the Court: to take place at 2 00

P. M., on June 26, 1967, at the Courthouse, 45 Monroe

: Place, Brooklyn, -New York, or as soon. theréafter as

counsel can be heard, for an order granting the follow-

ing relief :

(1) Directing that such proceedings be instituted

as will correctly set forth the status of and who

the.petitioner is in the present proceeding; and,

(2) Dismissing the petition against the said Lan- -

don Zuckerman; or inthe alternative, and if the

petition not’be dismissed,

get ea ; ;

(3) Remanding this proceeding to a Department

other than. the Second Department;»or in the -al-

ternative, and if the matter not be remanded,

(4) Referring the .proceeding for hearings de

novo on the remaining charges outstanding, against —

the respondent, namely, charges 5B, 5F and 5H,

and for such other and further’relief as to. the Court may .

seem just and proper.

Dated: New York, N. Y. Pod

June 16,1967, -

Yours, etc.,

_ EIBER, OKIN, RAFSKY & FELDMAN

Attorneys for Respondent, Landon Zuckerman

Office & P. O. Address

350 Fifth Avenue, -

ear New York Se i 2

To: eee é

Harold M. Spitzer, Esq., |

Chief Counsel to Judicial Inquiry on .

Professional Conduct, - oe

- 821 Franklin Avenue,

Garden City, N. Y.

e 36

e wi .

SUPREME*COURT OF THE STATE OF NEW YORK,

APPELLATE DivisioN—SECOND DEPARTMENT. ”

; — —

In THE MatTTER

7 :

co . of

LANDON ZucKkERMAN and Sam Haser, Attorneys.

State of New York,

* County of New York, ss:

“Lanpon sialic oaancaii being duly sworn, _ depose

says:

‘ SAMUEL GREASON, |

Lanpox Zociengas 8 and Sam’ Hass)

: a eidiiaite

q am the respondent in the above entitled ceeding,

. tive, and if th

tition not be- dismissed,

(1) Directing that oil i gs ‘a ‘astituted

(2) Dismissing the petition against the said Lan-

don Zuckerman; or in the alt |

(3) Remanding thi

other than the Sec

roceeding to a Department

‘Department; or in the alterna-

atter mot be remanded,

Petitioner, +.

(4) Referring. the proceeding for hearings de

novo on the remaining charges outstanding against

the respondent, maeneey, charges 5B, 5F, and 5H.

This. mation is made in the present form pursuant to

the notification contained in the letter of Hon. Herman

M. Pogul, dated June 9, 1967. :

I come to the Court after two years of suspension. So

far as I know, no attorney has ever faced so drastic’ an

additional period of suspension on charges so ‘unsupported

by evidence—tainted or otherwise. In considering the

motion, I would ask that this Court also consider whether

this nightmare might not now be ended so that I may go

in peace to earn a living for my family.

_ For purposes of convenience, the respective sections of .

this omnibus motion are treated separately.

- .

1 -, °

. $ sh

CORRECTION OF THE STATUS OF ‘THE PRESENT

: PROCEEDING.

_ Hon. Samuel Greason (the original prosecutor of the

above proceeding), is né longer associated with the Ju-

dicial Inquiry in Nassau County. Throughout ‘the pro- -

ceedings, Judge Greason appéared both as petitioner and

as counsel to the petitioner. No notice of substitution of

counsel has ever been received by. the respondent or his

attorneys, nor has any substitution of petitioner been

made. :

Under the circumstances, it weuld appear appropriate

that such proceedings should be undertaken as will regu-

larize the within proceeding so as to avoid the necessity

of dealing with a petitioner who has long been withdrawn

from this proceeding and the complications which may

arise as.a result thereof: . :

. -

y ‘

ae "pages. 452-458, ‘454-455, 455-457, 468-469, 578-580).

- . 4 4

- ..

—a% . : ¢- . 9

.°3 . ~ ‘ ? ‘ °

od a ’ } -

THE DISMISSAL OF THE PETITION.

The original order of disbarment, dated March 3, 1965,

end entered in the Office of the Clerk of this Honorable

‘Court on March 11, 1965, was reversed by the Supreme ~

Court of the United States (Landon Zuckerman, et als, v. ”

ri Greason, co 8, etry 17 L.. Ed. 2d -696, 87 8.

. a

The ciedaie Of the icone Court om on ‘Mareh :

ae) oy Mao

_< ‘Thereafter, cand on March 20, 1967, this Court aie its

order. suspending the respondént for. a period of five

years: nunc pro tunc as of- April 10, 1965. This order was

reversed by the Court of Appeals of the State of New

York ina memorandum decision dated June 1, 1967, upon

which the remaittitar of the Court: of a to this Court

; issued. ©

The proceeding originally as brought against ane took

_the form of an investigation authorized by this Honorable

Court and. conducted by the Judicial Inquiry of Nassau ~

County. “In the course of that inquiry subpoenas were

- served and my attendance’ compelled before the Judicial

‘Inquiry -in aid of the investigation being conducted by

that. body. ‘The’ record before this: Court is amply.clear

‘that I appeared many times before the Judicial Inquiry

_at its offices, produced many files and answered many

questions. In substance, I was compelled by the very

existence of the Inquiry. and the authority which it claimed

— which it exercised, to — and supply. evidence

i. inst myself. wal 3

_ * The wectett Sees diocese that Te files were / inquired

‘into by -the Inquiry, eng page 440). Appellant and’ yh

ner were interrogated by the Inquiry. at some eleven sessions .(Tran-

‘. seript, pages 450-451) and those eleven sessions did not include inter-

rogation’ by telephone and before Mr. Justice Gulotta long before any ~

charges were brought (Transcript, pages 450-451). The.Inquiry de- *

__ --¢-spanded and received files, records and sine Rnnnctes ‘which were produced

. to and .copied by .the Inquiry; ~fneluding ncial records (Transcript,

The answers made to “the ‘beailiy by ‘me were used

- against me inthe course of the disciplinary proceeding.

In addition, the documents produced by me were used

against me in the disciplinary proceeding. Basically, the

- charges against me were premised in substantially great-

est part on the evidence supplied by -me-and from my files.’

The all pervasive scope of the unlimited inquiry con-

ducted by the Judicial Inquiry can be illustrated by only

one small area of the Inquiry’s interest. On all of the

cases involved, in Charge 5-B, the evidence came from or

directly flowed from evidence supplied by me.from my

files subpoenaed by the Inquiry. That charge concerned

itself with Messrs.-Zimmer, Pound, Schliesman, Alexander, =

Erikson, Pasqua and White (see letter of February 24,

1961, annexed hereto).

The minutes of the Inquiry’s proceedings shows as. an

example, that from the Erikson file alone (which I sup-

plied to the Inquiry), eighteen separate documents were

submitted to Judge Gullata (see Pet. Ex. 800 of 4/7/61— ©

an Inquiry exhibit number prior to any proceedings

against me).

‘In the course of its inquiry etn my handling of cases

{ inivelv! ing infants, the Inquiry subpoenaed several hundred — :

files and took those papers therefrom that it desired.

The Inquiry’s letter of February 24, 1961, a copy of

which is submitted herewith,.shows one of the instances

where the Inquiry demanded and received 46 files. Se

From the documents obtained by the Inquiry under its

* then. unlimited power of subpoena, all of the charges

against me were developed. No matter that ultimately

the Referee found it all simmered down to little. Even:

the little came from me and from ‘my partner.

It follows from the foregoing that the Inquiry, however:

, well founded as an investigation, could not properly there-

after first compel me to testify against myself and produce

documents against myself, and then use that testimony and

40 |

those documents to support a. dieciplinat proceeding

against me.. This has now been settled by the Supreme

Court of.the United States in my own case.

For the reasons hereinbefore set forth, it is respect-

’ fully submitted therefor that the — proceeding

'” against me must-. be dismissed.

3. :

REMANDING THE PROCEEDING TO A DEPART-

' MENT OTHER THAN THE SECOND DEPART-

MENT.

- Assuming, for purposes of this motion, that this Court

will not dismiss the petition against me, I would most

respectfully point out that the view of me held by the

_ Court, as expressed in the order of March 20, 1967, sug-

. gests that this proceeding has lasted so long and the atmos-

phere which surrounds it is such as to warrant its trans-

fer to another Department.

An analysis of the evidence against me, ‘both tainted

and untainted (if any of the latter can be said to exist),

clearly shows that there is no evidence as a matter of law

to sustain the remaining charges against me.

Before addressing myself to the remaining charges, I

would most respectfully point out to the Court that in a

recent case (Matter of Sgarlato, ....s A. D. 2d ......, 277 N,

Y. S. 2d 318), where the offenses charged were far more

numerous and serious, this Court suspended an attorney

for two years, not five. I ha

more than two years an

this juncture appear to be at

--risk for three more yeafs, and I was not found guilty of.

any offenses involving money fraud, conflict of interest,

giving false and perjurious testimony, etc., ete. In es- |

sence, I have been effectively disbarred, for not only has

. this Court felt that I should be suspended for five years,

already been suspended for

hatin oS a)

_ 41

but that my readmission shall depend upon unspecified con-

_ ditions at the time of my reapplication for readmission.

The finality of my disbarment” has been replaced by the —

finality of my suspension.

Coming then to the remaining charges which have given °

‘rise to so drastic a-punishment and so drastic a prospeo-

tive punishment, I would most respectfully point out to

the.Court fhat the remaining three charges (and again

“even if the tainted evidence is included in their consid-

eration) cannot be sustained for a complete lack, of evi-

dence to support them.

Regarding Charges 5B and 5F. ~ c

The Referee’s report made no distinction between either

me, my partner, or the members of our staff and office as

_ to who, did what. The charges were simply held sustained —

as against us with nothing in the Referee’s report dr the ©

opinion of this Court (23 A. D. 2d 825, 259 N. Y. S. 2d 963)

to show what the Referee or. this Court found that I had

done.. No act or acts of misconduct by me, or my partner,

for that matter, were found by the Referee.

The record of the hearings before the Referee shows

.. that my partner and I testified to a complete lack of

knowledge of any impropriety in the handling of bills of

particulars or referrals to specialists for consultation

and Judge Greason stipulated as follows:

“It is hereby stipulated and agreed by and be-

tween the attorneys for the respective parties hereto .

that the petitioner does not intend to raise any is-

sue as to the testimony of the resporidents regard-

ing their office procedures in connection with the ..

preparation and -verification of bills of particulars

and examinations before trial.”** °

** Appellant and his partner had testified that they did not

ged i bills of particulars; that. this was a function of o oe

in the office

There was no evidence of any wrongdoing on my part.’

"before the Referee, at pages 951-952 of the transcript, that:

“We recognize, of course, that in any negligence

ease the attorneys for the plaintiff, if they think

it is advisable, have the right and duty to send their

and whatnot, if the facts in the particular case seem

to indicate that it is proper.”

» Although the Inquiry produced evidence that in only 13

cases out of more than 800 cases handled, appellant’s law

firm had referred clients to medical specialists for evalua-

tion, the Inquiry didn’t even attempt to prove that such

referral was other than perfectly. proper. As a matter of

fact, the evidence that I never attempted to influence the

conclusions or findings of any specialists, never requested

a specialist to modify his report, and never sent a client

‘to a specialist to build up medical bills, is completely un- -

contradicted on the record, .

With regard, to Charge 5B, there was absolutely no evi-

‘dence that any medical bills were false, let alone’known

to me or my partner to be false. There was no evidence

that I ever knowingly submitted a false bill of particulars

-or lost earnings statement in the course of litigation.

In not a single aspect of the two charges, did the Ref-

eree’s report find any improper conduct on my part or that

of my partner. Certainly no acts of moral turpitude were

even suggested. Aye .

Charge 5H.

Although this charge contained many specifications, the

Referee considefed only that aspect dealing with “adver-—

_ sary statements” and the charged violation of Special Rule

_7 (Referee’s report pp. 52-55). ,

.* | 43 |

-:In dealing with that charge and although the alleged

adversary “party” statements were taken by respondents’

investigator without instructions from me or my partner~

or any employee of our firm so to do, and although the

statements were taken long prior to the adoption of Spe-.

cial Rule 7 (the rule adopted July 1, 1960) and, without

exception; all statements were taken before any claim had

been asserted or any action had been started and the

statements for the most part were the oral statements

of witnesses reported by the investigator and not of par-

ties, the Referee found that Special Rule 7 applied and

that, céntrary to its specific language, it applied to wit- .

nesses as well as to parties and that it applied even though

the alleged violations occurred long prior to July 1, 1960. |

This Honorable Court confirmed this finding though it

flew in the face of its own rule.

All of the foregoing is premised upon ' the assumption

that all of the evidence used by the Referee and this Court

was properly ‘obtained. When it is considered that there

were 161 exhibits, almost all of which either came from or

were the consequence of information disclosed by our files,

it becomes manifestly clear that it would be almost hu- -

manly impossible to reconsider this matter on such evi-

dence as might properly remain unaffected by the tainted .

evidence. There were 1884 pages of testimony which was

taken over fifteen-days of hearings and the greatest por-

tion of this testimony derived from information disclosed

*. by me, by my partner Sam Haber, and by records: from

our office. Couple this to the éxhibits and it becomes

clear that this Court having at least twice considered

my alleged misconduct would be,asked now to ignore and

forget everything that it heard about me in reaching a

determination. I respectfully submit that it would be

impossible for this Court to do this, and it is for this

reason that the matter should be heard by. some oe,

body who could —— it with a fresh mind..

“s ore

This of course brings me to a * discussion of my next

- point in support of the-request that the proceeding be

remanded to a Department other than the Second De-

partment.

It is undisputed that the decision to prefér ‘charges |

against me’ resulted from an inquiry. into my conduct

which, in furn, resulted in a report to this Department

which must, of necessity, have contained ‘much that was .

palpably untrue... The Referee ‘dismissed most of the.

charges. against me. Those charges were supported by.

able liars. This Court, of course, at the time of the in-

quiry into ‘my affairs was in its investigative phase, was in

no position to know whether the perjurious evidence given

against me was in fact perjurious, and so it took the deci-*

sion to authorize that-charges be brought against me.

_I do not impugn the motives or good faith of this Court

in acting as it did, but I do respectfully draw the Court’s

‘witnesses. such as. Bernstein, who turned out to be prov- -

attention to the fact that when. it authorized charges ._

against me, this Court was acting as investigator and

- prosecutor, and was doing so in the belief that I was a

scoundrel—a belief fostered by the false testimony ‘against

.me.,

Some of the charges which the Referee later dismissed. .

be unreasonable to ask that the Court or anyone hearing

those charges in the first instance, not be affected by them.

‘When this Court came to consider: the Referee’s report,

the atmosphere created by. the original false evidence

must have lingered for the panenceatn meted out was

extraordinarily sévere.

Thi, when this Honorable Court | came to judge me,

it judged me after having been both investigator and

prosecutor, and if it judged me severely this, too, was

‘understandable, for certainly some of the witnesses who

were later disclosed to be completely untruthful made

statements which would have affected anybody.

~ 45

The Supreme Court of the United States has held on a

number of occasions that a court should not be investi-.

gator and prosecutor and judge in the same case. To

avoid any suggestion that . -any of the old and falsely

malodorous atmosphere might still. linger, I respectfully

request that this matter be remanded to a court to whom

the name Zuckerman is meaningless, who will come upon

the evidence fresh and unaffected by vile accusations it

will not have heard.

A HEARING DE NOVO.

As was previously pointed out, the time to be spent in

* winnowing out from the thousands of pages of testimony

and the hundreds of exhibits, that which i is tainted against

that which is untainted, would require an almost super--

human effort. Not only would a referee. have to analyze.

whether a specific bit of evidence was properly obtained,

but would also have to determine whether other evidence,

either by way of exhibit or by way of testimony, flowed

from initially tainted evidence.

It is respectfully submitted that the quickest and most

efficient way of handling the situation should this Honor-

able Court not grant the relief hereinbefore requested,

would be to require the petitioner to come forward with

whatever independent evidence he has against me and

‘allow a referee then to report to this Court on his findings

with regard to such independent evidence.

If my suggestion is followed, then there will be avoided |

‘the endless. argument and bickeringo on whether evidence

was tainted or flowed’ from tainted evidence, -etc., ete., ete.

- A clean record will then be before the Court and the facts

will then be reviewed’ without any suggestion, suspicion

é : | 46 ,

For the reasons hereinbefore set forth, it.is respect-

fully submitted that the proceedings be corrected; that the

petition be dismissed, or if the petition not be dismissed,

that the matter be remanded to a ‘Department for ~

, hearings de novo.

‘It has not been my ‘intention or desire to impede the

administration of justice. My duties as President of a:

. Yeshiva, U.J.A. Chairman, and member of the governing

board of my Temple, has made me acutely aware of the a

circumstances surrounding the Nazi- holocaust which de-

' _stroyed six million of my people, and instilled in me an

overwhelming compulsion to protect all our constitutional.

rights in the United States.

If my zeal and fervor has offended this Court, I apolo-

gize. My family and I have certainly suffered, and I hum-

bly ask this Court’s compassion in reaching its decision.

LANDON ZUCKERMAN

' Sworn to before me, this

17th day of June, 1967

LEONARD FELDMAN

| Notary Public, State of New York

_ Qualified in Nassau County

Cert. filed in New York County

Commission Expires March 30, 1968

- APPENDIX H.

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2 “APPENDIX I.

3 fe Judgment of Court of paweny

\ +. COURT OF APPEALS

se.

= State of New York, ss: 1

Pieas in the Court of Appeals, held at Court of

Appeals. Hall, in the City of Albany, on the

ow So * 31st day of October in thé year of our Lord

one thousand nine hundred and sjxty-seven,

. before the-Judges of said Court.

WITNESS, | | ie

The Hon Srantey H. Futp, Chief Judge, Presiding. —

Raymonp J. Cannon, Clerk. aa ee

Remittitur October 31, 1967. 0 yw. -

¢. *.o2 eee -e

‘ mn : : . ~~

_° .In tHE MATTER

of. a:

Lanpon ZuckeRMAN and Sam Haser, Attorneys.

? >

SAMUEL GREASON, a

Respondent,

Lanpon Zuckerman and. Sam Haser,

Appellants.

—

Brrr Remémperen, That’on the 8th day of September in

the year of our Lord one thousand nine hundred and sixty-

._ &

.. Sota enbettanetirvn

seven, Landon Zuckerman and Sam “Haber, the appellants

in this cause, came here unto the Court of Appeals, pro se,

. ‘and filed in the said Court a Notice of Appeal and return

thereto from the order of the Appellate Division of the -

Supreme Court’in and for the Second Judicial Depart-

‘ment. .And Samuel Greason, the respondent—in said

_. @ause, afterwards appeared, in said Court of Appeals by.

“Harold Spitzer, attorney.

Which -said Notice ‘of Appeal lil ‘the return thereto,

filed as aforesaid, - are hereunto annexed. ~

<. Wuertvupon, The aia Court of Appeals a eid |

this cause argued by M1. Emanuel Redfield, of counsel for

the appellant Haber, and by Mr. Landon Zuckerman, as .

appellant pro se»and by Mr. Harold M. Spitzer, of doun- |

‘. sel for the respéndent, ahd after due deliberation \had

. thereon, did order and adjudge that the ordér of the Ap-

pellate- Division of the Supreme Court appealed from

yg . herein be and the same hereby -is affirmed, without costs.

And it was also further ordered, that the record afore-

said, and the proceedings in this Court, be remitted to the

Appellate Division of the Supreme ‘Court, Second Judicial ie N

Department, there. to be — upon according to law.

’

_ TuErErore, it is considered that~ the = order be af-

firmed, ‘without. costs, as aforesaid.

And hereupon, as well,the Notice of pane and return

thereto aforesaid as the Judgment of the Court of Appeals

. aforesaid, by it given in the“ papmises,. are by the said.

Court of Appeals remitted into the Appellate Division

of the Supreme Court, ,Seeond Judicial Department, be- .

'fore the Justices thereof, according to the form of the.

_ Statute in suche case made and provided, to be’ enforced

= >} .

mr 50

according to law, and which record now remains in the

said Appellate Division, before the Justices thereof, &c.

_ _RAYMOND,J. CANNON,

Clerk of the Court of Appeals of the

State of New York. |

Court of Appeals, Clerk’s Office,

Albany, October 31, 1967. ;

I Heresy Certiry, that the preceding record contains a

correct. transcript of the proceedings in said cause in the

Court of Appeals, with the papers originally filed therein,

attached thereto. 7 :

RAYMOND J. CANNON,

Clerk..

(Seal.)

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