Reply Brief of Petitioner — Klebanoff v. Co-ordinating Committee on Discipline

a Office-Supreme Court, U.

PU R. FILE

AUG 24 1968

IN THE JOHN F. DAVIS, CLERK

Supreme Court of the United States

" October Term, 1968

No. 261

In om MAatTER OF THE APPLICATION

| OF

STANLEY M. KLEBANOFF, an Attorney,

Petitioner.

PETITION For Writ or CERTIORARI TO THE Court or APPEALS

oF THE State or New York

FP 2 Oba

= a ve

/

PETITIONER’S REPLY BRIEF

|

Henry G. McDonoves,

McDonoven, Scuyewer & Marcus,

349 Hast 149th Street,

Bronx, New York, 10451.

Of Counsel: |

K. Ricuarp Marcus

and

Minton Barp.

26d Pawel avtne en Nat er iar inl A cents yates

TABLE OF CONTENTS

ARGUMENT:

Point I.—The arguments raised by petitioner in

the instant ones are timely raised ........

Port II. a:fPetitininne was not afforded procedural

BO PUDOIEE gcc cctv crveccsscncesssscsrcves

Conciuston.—The petition for writ of certiorari

ND clo ccgevace ees ne cerk havens

Cases Cited

Brinkerhoff-Faris.Trust Co. v. Hill, 281 U. S. 673 .

Cohen v. Hurley, I EE oss os cutscene cftncties )

Cornley v. Cochran, 369 U.S. 506 .................

- Dahnke- Walker Milling Co. v. Bonduvant, 207 U.S.

i ¢ead cused eek koe eu eeeete duke ndtaesanys

PEE OTE TTT Pee TT eT ee! AUTTELTEPS LOS

Hernon v. Georgia; 295 U. S. 441 ............... rer

Johnson v. Zerbst, 304 U.S. 458 .........0........

Raley v. Ohio, 360 U. 8. 423 .......... eee ote

In re Ruffalo, 390 U. 8. 544; 88 S. Ct. 1222 .........

Saunders v. Shaw, 244 U.S. 317 .............4.05.

Whitney v. California, 270 U.S. 357 ......... ae pare

Zukerman and Haber v. Greason, 386 U.S.15......

dee iA er mnie ati Mn ae Spon in nL Seeia aol Paver eer eye oS Wart Sie wens ey

IN THE

ts ed Comt of the United States

— Term, 1968

No. 261

>——____—____

In the Matter of the Application

of

STanLey M. Kiesanorr, an Attorney,

| Petitioner.

Petition ror Writ or CERTIORARI TO THE COURT OF APPEALS

OF THE State or New York

ep

vr

PETITIONER’S REPLY BRIEF

“a4

POINT I

The arguments raised by petitioner in the instant pe-

tition are timely raised.

Respondent alleges that being the constitutional issue

was not raised before the trial court,’ then when petitioner

raised these constitutional questions before the Court of

Appeals,” for the first time, these constitutional questions

were not timely raised.

'In the instant matter the Aeiidnite Division sat as the trial court,

it being the Court of original jurisdiction.

2 In the instant matter the Court of Appeals sat as the first appellate

court.

——

OS SOP OT PERF OK FO PRO, | MELE TUT TE 8) ORE WRG DOS COOH PSA 9. Seer «

=

There was no waiver of petitioner’s constitutional rights

against self-incrimination. A waiver must be a knowing

and intelligent choice to proceed Gideon v. Wainright, 372

U. S. 335; Cornley v. Cochran, 369 U. S. 506 and how could

petitioner waive such right when his free choice had been

_ taken from him under the former law embodied in Cohen

v. Hurley, 366 U.S. 117.:

This court has in many eases held that a: an seediiont |

could not reasonably have anticipated a new construction

placed on a law, then the appellant could not be charged

with having failed to raise the question at an earlier stage :

) Brinkerhoff- Faris Trust Co. v. Hill; 281 U. S. 673, 677-8;

- Hernon v. Georgia, 295 U. S. 441; Saunders v. Shaw, 244

U. S. 317, 320; Dahnke-Walker Milling Co. v. Bonduvant,

257 U. S. 282; Whitney v. California, 270 U. S. 357, 360;

Raley v. Ohio, 360 U..S. 423, 434-6. In Johnson v. Zerbst,

304 U. S. 458, the court held that every possible pre-

sumption against a waiver of a constitutional right must be

indulged.

Here, Klebanoff, just as a cath not possibly have

anticipated a reversal of the Cohen v. Hurley case‘and his

objection to. his disclosures made under compulsion would

have been a futility.

This Court has recently decided this issue by its decision

in Zukerman and Haber v. Greason, 386 U.S. 15, a discipli-

- nary procéeding instituted in New York where both Zuker-

man and Haber were caused to testify while Cohen v. Hur-

ley was still the law. Zukerman raised the constitutional

question of self-incrimination during the initial hearing

but Haber did not. At that time, as in the instant matter,

it could not be anticipated that Cohen v. Hurley would be

over-ruled and a new construction placed on the law. This

court not only remanded the Zuckerman matter, wherein

the constitutional question had previously been raised, but

At eh te ee Lai Lan stan lant Chaka

also the Haber matter, where the constitutional question

had not previously been raised.

Respondent’s allegations that it was petitioner’s theory

of his case to cooperate so a less severe punishment would

be meted out herein is not justified. Fer an attorney to

believe that as an inducement to pleading guilty to charges

of professional misconduct and cooperating, the Appellate

Division would be more lenient with him is repugnant to

our system of justice. Let the punishment fit the crime

and let no inducement or promise be made to influence a

party to enter a guilty plea and cooperate. These latter

theories are basic to our judicial code and known to every

attorney. This petitioner cooperated in his self destruction

under the compulsion of the existing law of the land, Cohen

v. Hurley, and no other reason and it would have been

almost impossible for the respondent to prove most of -

these charges without the admissions of petitioner.

POINT II

Petitioner was not afforded procedural -due process.

Respondent still clings to the theory that a disciplinary

proceeding is not criminal in nature and therefore said

petitioner is not entitled to certain constitutional guaran:

tees. This theory is directly in conflict with-the recent

ruling. handed down by this court in In re Ruffalo, 390 U.S.

. 44; 88 S. Ct. 1222 wherein it is stated that : |

‘‘Disbarment, designed to protect the public, is a

punishment or penalty imposed on the lawyer. Ex

-parte Garland, 4 Wall, 333, 380, 18 L. Ed. 366;

Spevack v. Klein, 385 U. S. 511, 87 S. Ct. 625, 628,

17 L. Ed. 2d 574’’

POET Skerry eNO ce RRA MOOT NE

% : 4

POR a ee ale ia

.

PRATT DET SY Sem

. .

sana «Macaig ail

4

It further. stated therein that disciplinary proceedings

are adversary proceedings of a quasi-criminal nature. Cf.

In re Gault, 387 U.S. 1, 33, 87 S. Ct: 1428, 1446, 18 L. Ed

2d 527.

- And still ie pointed out that this petitioner was not

attorded proceedural due process during the entire under-

lying investigation and hearings of his conduct as an attor-

ney. It stated:

‘The charge must be known before the proceedings

commence.’’

‘They: become a trap when, after they are under-

way, the charges are amended on the basis of the

testimony of the accused.’’ |

In the instant matter, petitioner under compulsion of

Cohen v. Hurley, 366 U. S. 117, was forced to testify on

three occasions under oath, prior to any charge being

brought against him although he was under investigation

for certain alleged misconduct gleaned from The Grand

Jury Investigation. He was brought in and questioned

generally, not only as to those matters under investigation,

but, as is the general procedure in The First Judicial Dis-

trict of the Supreme Court of the State of New York, as to

a general fishing expedition into petitioners practice, ques-

tions that may result and, in the instant matter, did result

in further charges being brought against this petitioner,’

charges of which the respondent would not have been aware

of without the testimony of petitioner.

If it is a violation of procedural due process to amend

charges brought against an attorney in a disciplinary pro-

ceeding based upon said attorney’s testimony and to incor-

porate charges gleaned from such testimony, then, as here,

* Charge 6, co-mingling of funds (see Petition, p. 21).

Or

it is a violation of procedural due process to have this

petitioner testify under oath, while under investigation,

without any charges brought against him, and based upon

said testimony, and only after same, to then bring charges

against this petitioner. As stated in In re Ruffalo: -

‘‘The charge must be known before the proceedings

commence. * * * This absence of fair notice as to the

reach of the grievanee procedure and the precise

nature of the charges deprived petitioner of proced-

ural due process.”’ :

-

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

- Henry G. McDonovex,

’ McDonoveu, Scunewer & Marcus,

349 East 149th Street,

Bronx, New York 10451

K. Ricwarp Marcus

and |

Mitton Barn,

On the Brief.

POSE RAL NNTP TNE FUE ELEN CRS LY

erie coma

amet OE TR