# Petition for Writ of Certiorari — Zuckerman v. Greason > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385603_1103%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1968 - **Citation:** 390 U.S. 925 ## Text 9 4 D “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 ? . * ’ . ¥ 5 . . : ¢ . . ‘i “ . Pind . pie . ® . , ‘. e * - a ’ ad « % wk . - , ° . .: ra i vs r x ‘ . \ . ‘; F , : \, ° af ‘ . eo, . . J e . . * . o F y . . * & . a ’ . *e e . i b. . * v . : ‘ ¢. een % a F . . . E : . . « oft * : ‘ *, ; . ‘ 4 Lie t= ' fe M eel a 4 : ° . : - ‘ S&S ; ; ak . ‘ \ : al . a * . f ~ ; . > ——— - ——— —————— : : ° « . y * F ° . . . eo ¢ . J work - : tw . - . ‘ | F = % ’ : ° . %, . Das : bs : : : ’ F P . Ps . ‘ ; a “i . e e . } ne ere : . 7 be « — a . - . * s ” > . ' 2 . ir] Pa a) nee io ’ - * ” 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 9 2 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?. o 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 > 3 "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 * a. ers. 4 _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 0 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. 2 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). ie - 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. b a a) 8. 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. 4. e ‘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- I\ 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. - 6) ° & £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 —__ . In tHe MATTER _ of ; @ SaMvueEL GREASON, Petitioner, against %y _ Lanpon Zuckerman and Sam Haser, Respondents. State of New York, County of New York, ss: Sam Haser, being duly sworn, says: 5 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 @ \ \ 32 » * “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, o 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- > ee — of: petitioner be denied. 33 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 ° J 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 oS ‘34 - APPENDIX 6G. : SUPREME COURT OF THE STATE OF NEW YORK, 6 ‘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 ; ; 35 (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. ” ia ; — — 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, +. 37 (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 . - y ‘ ~~ ae "pages. 452-458, ‘454-455, 455-457, 468-469, 578-580). - . 4 4 - .. —a% . : ¢- . 9 .°3 . ~ ‘ ? ‘ ° od a ’ } - 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.. 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' nbs ™, , S /\. - 7 er : on ide ( 4 : on 7 4 : je f f ‘ ; _— . a ' a my ff) A @. : " a “nt wousag rt Sa es ee t s rd O4 UD’! Ye Se. ane” ede > . : a ; at 4 ‘ : ue a i suo gvaedooo anos wos nok UBL eS y 1 te , ee ‘ {osanii neat ITF Loved write . “aeqed oupst | Bk F | j fe AON Trosuostoy: vettTyS. upuissfeTyog aed , yao FueHy uy | ES a oz eunp) - UF. leg + ade | pimod pat esas . gpyMyospToy ud TOIE A : i . «Fd ded “i i bee on ? a. $ . (LS6T Sgt #420) ust Ter" V' fi to pUBx OLY ae _ ‘Byarey paws A = ee ss Pes: a - . Ko = (LST FLT AoW) YOTaELA 2, 000d somo" =. AaUH samaaee J > te Te ee ea « , 7 cm onduy Touyo tw, wsux09 WO, WOETTSAMV 7 . qaey fyqoae,y\ 7 Sg arte y . - ee ; ee ‘i ae aeuysityn see oes. GYoy ous Tousyn = ae PABYyyIoT uozey he q e . a a | sd : ‘ 2 . ‘ : 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 49 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. ~ } . 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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Public record. Not legal advice.